The idea of a pure theory of law

著者

書誌事項

The idea of a pure theory of law

Christoph Kletzer

Hart Pub., 2018

  • : hb

大学図書館所蔵 件 / 全4件

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注記

Bibliography: p. [140]-146

Includes index

内容説明・目次

内容説明

Most contemporary legal philosophers tend to take force to be an accessory to the law. According to this prevalent view the law primarily consists of a series of demands made on us; force, conversely, comes into play only when these demands fail to be satisfied. This book claims that this model should be jettisoned in favour of a radically different one: according to the proposed view, force is not an accessory to the law but rather its attribute. The law is not simply a set of rules incidentally guaranteed by force, but it should be understood as essentially rules about force. The book explores in detail the nature of this claim and develops its corollaries. It then provides an overview of the contemporary jurisprudential debates relating to force and violence, and defends its claims against well-known counter-arguments by Hart, Raz and others. This book offers an innovative insight into the concept of Pure Theory. In contrast to what was claimed by Hans Kelsen, the most eminent contributor to this theory, the author argues that the core insight of the Pure Theory is not to be found in the concept of a basic norm, or in the supposed absence of a conceptual relation between law and morality, but rather in the fundamental and comprehensive reformulation of how to model the functioning of the law intended as an ordering of force and violence.

目次

1. Introduction 2. The Purity of the Pure Theory of Law I. What is the Pure Theory of Law? II. The Contest of Standpoints III. The Kantian Manoeuvre IV. The Purity of the Pure Theory V. The Primitive Function of the Law VI. The Demand Model of the Functioning of Law 3. Law as an Order of Force or Violence I. Law and Violence II. The Germ of Law III. Violence and Self-Help in Roman Law IV. The Effectiveness of Law V. Force as Content of the Law VI. Law and State VII. Criticism 4. Law as Permission I. Introduction II. Empowerment III. Permission IV. The Naturalistic Logic of Permission V. The Functioning of Permissions VI. Exclusionary Permissions? 5. The Law as a Schema of Interpretation I. Introduction II. Schemata, Fictions and Institutional Facts III. Schemata and Imagination IV. Law and Order 6. Normative Monism I. Introduction II. Legal Monism III. Normative Monism IV. The Great Incompatibility V. The Normative Jinx 7. Absolute Positivism I. Introduction II. Relative Positivism III. Absolute Positivism Projected IV. Agrippa's Trilemma V. Absolute Positivism Developed VI. Law as Legal Process VII. The Basic Norm 8. Conclusion

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