The Concept of Liberal Democratic Law: 1st Edition (Paperback) book cover

The Concept of Liberal Democratic Law

1st Edition

By Johan Van Der Walt

Routledge

312 pages

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Paperback: 9780367181819
pub: 2019-10-01
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Description

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.

Table of Contents

Table of 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

About the Author

Johan van der Walt is Professor of Philosophy of Law, University of Luxembourg

About the Series

Law and Politics

Continental Perspectives

A core legacy of the Continental juridico-political tradition is the methodological commitment to the idea that law and politics are inextricably tied to one another. On the one hand, law has to be studied in the light of the concrete political dynamics, social forces, and societal movements that make law what it is. On the other hand, the analysis of political processes should be coupled with the study of the legal techniques through which politics exerts its effects on social reality.
The series aspires to promote works that use the nexus 'law & politics' as a prism that allows understanding societal dynamics beyond the deep-seated borders separating purely legal from purely political methodologies. It welcomes theoretically informed and empirically grounded analyses that foster the development of theory in the study of juridico-political processes.

The qualifier 'Continental' signifies not so much a geographical or socio-historical feature as a methodological one. The approach that the series aims to promote, regardless of the nationality of prospective authors, materializes at the intersection between the vocabularies and methodologies of legal and political theories. In other words, the starting point of this approach is that the interplay between legal and political processes provides a precious lens to observe and comprehend contemporary societal phenomena.

More specifically, submissions exploring the following themes are welcomed:

  • The relationship between the legal and the political spheres from a theoretical, historical and/or empirical point of view.
  • The transformation of sovereignty.
  • The transformation of the state and the rise of non-state political and organizational structures that break the ties with modern statehood.
  • Exceptionalism and emergency at the domestic and/or the global level.
  • The downfall of conventional juridico-political binaries: public/private, state/civil society, domestic/international, religious/secular and others.
  • Current transformations of formal constitutions and the separation of powers.
  • Issues related to the increasing spread of legal pluralism and global legal pluralism.
  • Strategies and politics of legal elites and the new role of judicial bodies both nationally and internationally.
  • Analyses of key Continental authors who have brought to light the materiality of the law, such as Giorgio Agamben, Hannah Arendt, Jacques Derrida, Michel Foucault, Hans-Georg Gadamer, Marcel Gauchet, Antonio Gramsci, Jurgen Habermas, Reinhart Koselleck, Antonio Negri, Carl Schmitt and others.
  • Analyses of key Continental "classics" whose voice is unheard or underrepresented in the Anglophone academic and publishing environment, such as Walter Benjamin, Leon Duguit, Georges Gurvitch, Maurice Hauriou, Hermann Heller, Georg Jellinek, Ernst Junger, Costantino Mortati, Georges Renard, Santi Romano, Rudolf Smend, Simone Weil and others.

This interdisciplinary series welcomes monographs and edited volumes that engage with the conceptual and empirical questions detailed above and discussions of how the contamination of jurisprudential and theoretical-political approaches helps illuminate current national and global processes.

Learn more…

Subject Categories

BISAC Subject Codes/Headings:
HIS010000
HISTORY / Europe / General
HIS049000
HISTORY / Essays
LAW000000
LAW / General
LAW052000
LAW / Jurisprudence
LAW101000
LAW / Essays
LAW111000
LAW / Judicial Power
PHI019000
PHILOSOPHY / Political
PHI039000
PHILOSOPHY / Movements / Analytic
POL010000
POLITICAL SCIENCE / History & Theory