1st Edition
A New Introduction to Jurisprudence Legality, Legitimacy and the Foundations of the Law
A New Introduction to Jurisprudence takes one of the central problems of law and jurisprudence as its point of departure: what is the law? Adopting an intermediate position between legal positivism and natural law, this book reflects on the concept of ‘liberal democracy’ or ‘constitutional democracy’.
In five chapters the book analyses: (i) the idea of higher law, (ii) liberal democracy as a legitimate model for the state, (iii) the separation of church and state or secularism as essential for the democratic state, (iv) the universality of higher law principles, (v) the history of modern political thought.
This interdisciplinary approach to jurisprudence is relevant for legal scholars, philosophers, political theorists, public intellectuals, historians, and politicians.
Preface
Chapter 1: Legality and Legitimacy in Natural Law and Legal Positivism
- Five Characteristics of Natural Law
- Plato
- Teleology
- Man as a Rational Being
- Metaphysical Principles
- Absolute Validity
- A Touchstone
- Objections
- Sein and Sollen
- Empty Formulas
- Feelings
- Evaluation of the Objections
- Lon Fuller
- Natural Law, a Form of Morality?
- Judge and Conductor
- Ubi Societas, Ibi Ius
- Again: Empty Formulas
- Alternative Natural Law
- Perelman and Hayek
- Hayek on Spontaneous Order
- Tradition
- A Touchstone for the Law
- Gustav Radbruch
- H.L.A. Hart
- The Hart-Fuller Debate
- A Synthesis
- Lex Iniusta Non Est Lex?
Chapter 2: Democracy and the Rule of Law as a Legitimate Form of Government
- Postmodernism
- Liberal Democracy
- Democracy
- The Rule of Law and "Rechtsstaat"
- Five Principles of the Rule of Law
- The GPM
- Humanism
- Humanism and the Rule of Law
- The Tension Between Entrenchment and Democracy
- Paine and Burke
- Judicial Review
- Contradictions Between the GPM
- Two Consequences
- The End Thesis Revisited
Chapter 3: The Separation of Church and State
- Bishop Nazir-Ali
- Nazir-Ali Under Criticism
- Theoterrorism and the Agnostic State
- The Atheist State
- The Theocratic State
- Saudi-Arabia as a Theocratic State
- Prosecutions and Executions
- Cruel Punishments
- Phinehas and Moses
- Who Are We These Days?
- State Religions
- The Multiculturalist State
- The Agnostic State
- Western?
- The French Laïcité
Chapter 4: The Universality of Values and Principles
- Cultural Conflicts
- Live and Let Live
- Female Genital Mutilation
- The Conflict Defined
- Acceptance on the Basis of Respect
- Cultural Relativism
- Six Cultural Relativists
- Herodotus
- The Sophists
- Protagoras
- Montaigne
- Sumner
- Folkways
- Benedict
- Socially Approved Habits
- Westermarck
- Stace, Bloom, and Bork
- Dickens and Kipling
- Seven Elements of Cultural Relativism
- Dworkin on Critical Morality
- Critical Morality and Cultural Anthropology
- Consistency
- Practical Objections
- Universality is Indispensable
- Hamed Abdel-Samad
Chapter 5: The Classical Foundations of Modern Law
- A Modern Worldview
- From the Middle Ages to Modern Times
- Descartes
- Penal Law and Modernity
- Enlightenment
- Social Contract Theories
- Hobbes
- Rousseau
- Human Rights
- Rousseau and Hobbes Revisited
Index
Biography
Paul Cliteur is Professor of Jurisprudence at Leiden University, the Netherlands. He is the author of The Secular Outlook (2010) and Theoterrorism v. Freedom of Speech (forthcoming).
Afshin Ellian is Professor of Jurisprudence at Leiden University, the Netherlands. He edited The State of Exception and Militant Democracy in a Time of Terror (2012) and Counterterrorism after the IS-Caliphate (forthcoming).