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Vol 24 No 10 Oct/Nov 2019

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Lewis and Buchan: Clinical Negligence A Practical Guide

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The Concept of Liberal Democratic Law


ISBN13: 9780367181819
Published: October 2019
Publisher: Routledge
Country of Publication: UK
Format: Paperback
Price: £29.99



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This book develops a historical concept of liberal democratic law through readings of the pivotal twentieth-century legal theoretical positions articulated in the work of Herbert Hart, Ronald Dworkin, Duncan Kennedy, Rudolf Smend, Hans Kelsen and Carl Schmitt.

It assesses the jurisprudential projects and positions of these theorists against the background of a long history of European metaphysics from which the modern concept of liberal democratic law emerged. Two key narratives are central to this history of European political and legal metaphysics. Both concern the historical development of the concept of nomos that emerge in early Greek legal and political thought.

The first concerns the history of philosophical reflection on the epistemological and ontological status of legal concepts that runs from Plato to Hobbes (the realist-nominalist debate as it became known later). The second concerns the history of philosophical and political discourses on law, sovereignty and justice that starts with the nomos-physis debate in fifth century Athens and runs through medieval, modern and twentieth century conceptualisations of the relationship between law and power. Methodologically, the reading of the legal theoretical positions of Hart, Dworkin, Kennedy, Smend, Kelsen and Schmitt articulated in this book is presented as a distillation process that extracts the pure elements of liberal democratic law from the metaphysical narratives that not only cradled it, but also smothered and distorted its essential aspirations.

Drawing together key insights from across the fields of jurisprudence and philosophy, this book offers an important and original re-articulation of the concept of democratic law.

Subjects:
Jurisprudence
Contents:
PREFACE
Introduction
1) Law, Sovereignty and Justice
2) Sovereignty and "Correctness" or "Rightness"
3) The Symbolic and the Real, Conviction and Opinion
4) Legal Positivism
5) Re-reading 20th Century Jurisprudence
6) Natural Law
7) Critical Theory and the Theory of Liberal Democracy
8) From Böckenförde and Lefort to Agamben – a Note on Method and Methodology
9) Outline
CHAPTER ONE: NOMOS AND NOMINALISM – THE VILLEY THESIS
1) Philosophical Beginnings: Plato and Aristotle
2) Aristotle and Roman Law
3) From Roman Law to Saint Augustine
4) St. Thomas and William of Ockham
5) An Anti-Democratic Thesis?
CHAPTER TWO: NOMOS OF THE EARTH – BETWEEN VILLEY AND SCHMITT
1) Pindar’s Poem: Nomos as Physis
2) Nomos as Kosmos
3) Nomos as Concrete Political Space and Order
4) Nomos from Mytilene and Melos to Versailles
5) Nomos, Force and Violence under the Jus Publicum Europaeum
6) Villey and Schmitt
CHAPTER THREE: NOMOS AND PHYSIS
1) Two Conceptions of Nature
2) An Irreversible Fall from Innocence
3) Antigone
4) Protagoras
5) The Poetic and the Political
CHAPTER FOUR: POTENTIALITY AND ACTUALITY
1) Aristotle’s Potentiality and Actuality Distinction
2) The Unravelling of the Potentiality-Actuality Distinction
3) Agamben’s Pauline Reconstruction of the Potentiality-Actuality Distinction
CHAPTER FIVE: AUCTORITAS AND POTESTAS
1) The State or Exception
2) Emperor, Pope and King
3) President, Chancellor, Führer
4) Nomos and Physis
CHAPTER SIX: FROM NOMOS TO DEMOS
1) The People?
2) The Revolutionary Deification of the People
3) The Unfindable People
4) The General Will of the People
5) Universal and Particular – Key Coordinates of a Bourgeois Century
CHAPTER SEVEN: ECONOMY, SOCIETY AND SPIRITUAL HISTORY
1) The Utilitarian and Economic Unity of the People
2) The Historico-Spiritual and Conceptual Unity of the People – Kant, Hegel, Savigny
3) The Social Unity of the People: Living Law, Freirechtsbewegung and American Realism
CHAPTER EIGHT: RULES, PRINCIPLES AND POLITICAL MORALITY
1) Law as Primary and Secondary rules - Hart
2) Law as Rules, Principles and Political Morality – Dworkin
CHAPTER NINE: LEGAL NORMATIVITY AND SPIRITUAL CULTURE
1) The Normative Integration of Society - Kelsen
2) The Cultural Integration of Society - Smend
CHAPTER TEN: POLITICAL ANTAGONISM AND NORMATIVE CONTRADICTION
1) Law as Political Antagonism – Schmitt
2) Law as Fundamental Contradiction – Duncan Kennedy
CHAPTER ELEVEN: THE DISTILLED CONCEPT
1) Two Concepts of Nature and Spirit
2) Distilling Law from the Metaphysics of Life
3) Debunking Nomos
4) Debunking Demos
5) Divided Life
6) Potentiality and Actuality
7) Law as Legislation
8) The Distilled Doncept Defined
BIBLIOGRAPHY