A Treatise of Legal Philosophy and General Jurisprudence: by Gerald J. Postema

By Gerald J. Postema

Written from either a theoretical and a old viewpoint, this quantity discusses concerns in criminal philosophy and common jurisprudence. geared toward jurists in addition to felony and useful philosophers, the textual content comprises ancient and theoretical ideas, in addition to the improvement of felony proposal.

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Extra info for A Treatise of Legal Philosophy and General Jurisprudence: Volume 11: Legal Philosophy in the Twentieth Century: The Common Law World

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Objections came from two quarters. Bryce clearly summed up the first line of criticism, which arose from within the ranks of analytic jurisprudence, when he wrote: In mature States where there exist public authorities regularly exercising legislative functions, most laws do not belong in their form or their meaning to the category of commands. In order to make them seem commands a forced and unnatural sense must be put upon them, by representing the State as directly ordering everything to which it is prepared to give effect.

Anticipating Hart’s familiar challenge (Hart 1994, 71–8), Bryce asked where, for example, the sovereign resides in the dual state of the Austro-Hungarian monarchy (Bryce 1901, 538–9). Even more pointedly, he asked who is to be deemed sovereign in the United States (Bryce 1901, 539–40; compare Salmond 1924, 530). All the governing bodies are said to be subordinate to the Constitution, but the Constitution is not a determinate person or body of persons, and the only eligible such body of persons is the people of the states, but they do not act regularly.

2 CHAPTER 1 - ANALYTIC JURISPRUDENCE ESTABLISHED 9 forcement is a necessary condition of the existence of a legal system, but rejected the Austinian assumption that coercion is a necessary feature of each law. Other critics, notably William Galbraith Miller, pressed a more fundamental criticism. Against those who put state enforcement institutions at the foundations of law, Miller argued that this focus distorts our understanding of law’s fundamental mode of operation. “The error of supposing that law is only involved in cases of contentions between men,” he wrote, “is as great as if we supposed that nobody but a dyspeptic had a stomach or a liver” (Miller 1884, 22).

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