1.. HARD CASES 5. Legal Rights A. Legislation . . . We might therefore do well to consider how a philosophical judge might develop, in appropriate cases, theories of what legislative purpose and legal principles require. We shall find that he would construct these theories in the same manner as a philosophical referee would construct the character of a game. I have invented, for this purpose, a lawyer of superhuman skill, learning, patience and acumen, whom I shall call Hercules. I suppose that Hercules is a judge in some representative American jurisdiction. I assume that he accepts the main uncontroversial constitutive and regulative rules of the law in his jurisdiction. He accepts, that is, that statutes have the general power to create and extinguish legal rights, and that judges have the general duty to follow earlier decisions of their court or higher courts whose rationale, as l

Taking Rights Seriously

Scholars of culture, humanities and social sciences have increasingly come to an appreciation of the importance of the legal domain in social life, while critically engaged socio-legal scholars around the world have taken up the task of understanding "Law's Empire" in all of its cultural, political, and economic dimensions. The questions arising from these intersections, and addressing imperialisms past and present forms the subject matter of a special symposium issue of Social Identities under the editorship of Griffith University's Rob McQueen, and UBC's Wes Pue and with contributions from McQueen, Ian Duncanson, Renisa Mawani, David Williams, Emma Cunliffe, Chidi Oguamanam, W. Wesley Pue, Fatou Camara, and Dianne Kirkby. This paper introduces the volume, forthcoming in late 2007. The central problematique of this issue has previously been explored through the 2005 Law's Empire conference, an informal but vibrant postcolonial legal studies network.

Law's Empire

American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

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Current index to legal periodicals

Preface to the Second Edition Part 1: Philosophical Bearings 1. Aims and Strategy 2. The Underlabourer Conception of Philosophy 3. Philosophy and Science 4. The Philosopher's Concern with Language 5. Conceptual and Empirical Enquiries 6. The Pivotal Role of Epistemology in Philosophy 7. Epistemology and the Understanding of Society 8. Rules: Wittgenstein's Analysis 9. Some Misunderstandings of Wittgenstein Part 2: The Nature of Meaningful Behaviour 1. Philosophy and Sociology 2. Meaningful Behaviour 3. Activities and Precepts 4. Rules and Habits 5. Reflectiveness Part 3: The Social Studies as Science 1. J.S. Mill's 'Logic of the Moral Sciences' 2. Differences in Degree and Differences in Kind 3. Motives and Causes 4. Motives, Dispositions and Reasons 5. The Investigation of Regularities 6. Understanding Social Institutions 7. Prediction in the Social Studies Part 4: The Mind and Society 1. Pareto: Logical and Non-Logical Conduct 2. Pareto: Residues and Derivations 3. Max Weber: Verstehen and Causal Explanation 4. Max Weber: Meaningful Action and Social Action Part 5: Concepts and Actions 1. The Internality of Social Relations 2. Discursive and Non-Discursive 'Ideas' 3. The Social Sciences and History 4. Concluding Remark

The Idea of a Social Science and its Relation to Philosophy.

A. L. Kroeber and Clyde Kluckhohn, "culture: A critical review of concepts and definitions"

International law is a social historical legal tradition that emerged and spread over time to deal with matters between and across polities. This statement may appear obvious, but its full implications point to a thorough reconstruction of theoretical accounts of international law. Part I recounts how Bentham inadvertently created an enduring set of theoretical problems for international law. Part II describes international law as a social historical legal tradition, showing its European origins and diffusion with imperialism, and exposing three slants in international law. Part III broadens the lens to sketch the history of interaction between and across polities and how this has been managed. Part IV details contemporary efforts to deal with this interaction through organizations and transnational law and regulation. With this background in place, Part V elaborates a series of theoretical clarifications. First I unravel several confusions that result from construing state law and international law as parallel categories and conflating system with category. Then I explain why international law is a form of law, although not a unified hierarchical system. Contrary to common perceptions, furthermore, I show that state law and international law are not and have never been separate systems. Finally, I clarify the relationship between international law and transnational law and regulation. Aspects of this theoretical reconstruction may initially appear surprising, but they follow from the insight that international law is a social historical tradition.

What Is International Law

The rule of law is the most important political ideal today, yet there is much confusion about what it means and how it works. This 2004 book explores the history, politics, and theory surrounding the rule of law ideal, beginning with classical Greek and Roman ideas, elaborating on medieval contributions to the rule of law, and articulating the role played by the rule of law in liberal theory and liberal political systems. The author outlines the concerns of Western conservatives about the decline of the rule of law and suggests reasons why the radical Left have promoted this decline. Two basic theoretical streams of the rule of law are then presented, with an examination of the strengths and weaknesses of each. The book examines the rule of law on a global level, and concludes by answering the question of whether the rule of law is a universal human good.

On the Rule of Law: History, Politics, Theory

The notion of legal pluralism is gaining momentum across a range of law-related fields. Part 1 of this article will portray the rich history of legal pluralism, from the medieval period up to the present. Part II will explain why current theoretical efforts to formulate legal pluralism are plagued by the difficulty of defining “law.” Finally, Part III will articulate an approach to contemporary legal pluralism that avoids the conceptual problems suffered by most current approaches, while framing the salient features of legal pluralism.

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Understanding Legal Pluralism: Past to Present, Local to global†

Despite its relatively recent origin about two decades ago, the concept of legal pluralism bears the marks of approaching ensconced establishment maturity. There is the Commission on Folk Law and Legal Pluralism, with a registered membership list that reads like the honour roll of living legal anthropologists; there are biennial international conferences; there is a growing number of published symposia; and, the ultimate sign of academic acceptance, there is the Journal of Legal Pluralism, born out of a 1981 name-change of the old Journal of African Law Studies. Consistent with these indicia, legal pluralism is one of the dominant concepts in the field of legal anthropology. Moreover, it has been claimed, 'legal pluralism can be seen as the key concept in a postmodern view of law'.' In this essay I will critically examine this precociously successful doctrine. Thus far there has been scant detailed analysis of the concept of legal pluralism, limited to a handful of articles written by a small circle of scholars. Nonetheless, through the academic practice of repetitive citation and crosscitation, a burgeoning body of legal pluralist works increasingly treats the concept as if it were well established, its basic tenets worked out and now taken for granted.2 I will argue otherwise. The thesis of this essay is that the concept of legal pluralism is constructed upon an unstable analytical foundation which will ultimately lead to its demise. I will begin with a review of the concept of legal pluralism, emphasizing the implications of the inability of legal pluralists to locate an agreed definition of 'law'. I will set out and evaluate the stated objectives of legal pluralists. I will indicate why no attempt to formulate a single scientific or cross-cultural definition of law can succeed. I will suggest an account of the historical development of legal pluralism in order to offer an explanation of how the concept originated and why it has thrived despite its flaws. Finally, I will argue that legal pluralists have built a fundamental ambiguity into their

The Folly of the 'Social Scientific' Concept of Legal Pluralism

1. The Framework 2. Law and Society in Western Legal and Social Theory 3. Loosening the Hold of the Mirror Thesis 4. Against the Mirror Thesis 5. A Socio-Legal Positivist Approach to Law 6. A Non-Essentialist Legal Pluralism 7. Elements of a General Jurisprudence Index

Brian Z. Tamanaha

Papers

What Is International Law

On the Rule of Law: History, Politics, Theory

Understanding Legal Pluralism: Past to Present, Local to global†

The Folly of the 'Social Scientific' Concept of Legal Pluralism

A general jurisprudence of law and society