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A Critical Legal Examination of Liberalism and Liberal RightsRethinking the Ontology of Law and Rights on Critical Legal Lines

A Critical Legal Examination of Liberalism and Liberal Rights: Rethinking the Ontology of Law and... [Legal theory has a long and esteemed history in many different traditions. Confucianism and legalism have had a tremendous impact on Chinese legal traditions to this day, as have the rich and complex ruminations of scholars interpreting the Sunna of Islamic law. In a European context, legal theory has deep roots in the thinking of natural law theorists in Greece and Rome, who in turn inspired Scholastic ruminations by figures like Augustine and Aquinas who distinguished between various forms of obligation set by worldly authorities, natural morality, and the state. The liberal legal tradition has already been discussed at some length in Chap. 1. Beginning with Grotius, given systematic weight by Locke, Hobbes, Kant and others, and finally reaching a peak of technical precision with the emergence of analytical legal theory starting with Austin in the nineteenth century. Liberalism has appealed to many different forms of legalism throughout this history, from natural law theory, Burkeanism and Straussianism, many species of legal positivism, deontological proceduralism, originalism, and law as integrity in the work of Ronald Dworkin. Many of these forms of liberal legalism have made rights discourse central to their accounts of legal legitimation; though Kant, Hart, Dworkin and others give very different accounts of the relationship between rights and law. This Chapter will only be able to give a brief summary of these myriad differences before presenting my own argument for how law’s ontology should be reconceived on different ontological lines.] http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png

A Critical Legal Examination of Liberalism and Liberal RightsRethinking the Ontology of Law and Rights on Critical Legal Lines

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Publisher
Springer International Publishing
Copyright
© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020
ISBN
978-3-030-61024-1
Pages
223 –261
DOI
10.1007/978-3-030-61025-8_5
Publisher site
See Chapter on Publisher Site

Abstract

[Legal theory has a long and esteemed history in many different traditions. Confucianism and legalism have had a tremendous impact on Chinese legal traditions to this day, as have the rich and complex ruminations of scholars interpreting the Sunna of Islamic law. In a European context, legal theory has deep roots in the thinking of natural law theorists in Greece and Rome, who in turn inspired Scholastic ruminations by figures like Augustine and Aquinas who distinguished between various forms of obligation set by worldly authorities, natural morality, and the state. The liberal legal tradition has already been discussed at some length in Chap. 1. Beginning with Grotius, given systematic weight by Locke, Hobbes, Kant and others, and finally reaching a peak of technical precision with the emergence of analytical legal theory starting with Austin in the nineteenth century. Liberalism has appealed to many different forms of legalism throughout this history, from natural law theory, Burkeanism and Straussianism, many species of legal positivism, deontological proceduralism, originalism, and law as integrity in the work of Ronald Dworkin. Many of these forms of liberal legalism have made rights discourse central to their accounts of legal legitimation; though Kant, Hart, Dworkin and others give very different accounts of the relationship between rights and law. This Chapter will only be able to give a brief summary of these myriad differences before presenting my own argument for how law’s ontology should be reconceived on different ontological lines.]

Published: Nov 24, 2020

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