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Visions of Sharīʿa

Contemporary Discussions in Shī ͑ī Legal Theory

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Edited by Ali-reza Bhojani, Laurens de Rooij and Michael Bohlander

In Visions of Sharīʿa Bhojani, De Rooij and Bohlander present the first broad examination of ways in which legal theory ( uṣūl al-fiqh) within Twelver Shīʿī thought continues to be a forum for vibrant debates regarding the assumptions, epistemology and hermeneutics of Sharīʿa in contemporary Shīʿī thought. Bringing together authoritative voices and emerging scholars, from both ‘traditional’ seminaries and ‘Western’ academies, the distinct critical insider and emic accounts provided develop a novel avenue in Islamic legal studies. Contextualised through reference to the history of Shīʿī legal theory as well as contemporary juristic practice and socio-political considerations, the volume demonstrates how one of the most intellectually vibrant and developed discourses of Islamic thought continues to be a key forum for exploring visions of Sharīʿa.

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Edited by Simone Zurbuchen

The Law of Nations and Natural Law 1625-1800 offers innovative studies on the development of the law of nations after the Peace of Westphalia. This period was decisive for the origin and constitution of the discipline which eventually emancipated itself from natural law and became modern international law.

A specialist on the law of nations in the Swiss context and on its major figure, Emer de Vattel, Simone Zurbuchen prompted scholars to explore the law of nations in various European contexts. The volume studies little known literature related to the law of nations as an academic discipline, offers novel interpretations of classics in the field, and deconstructs ‘myths’ associated with the law of nations in the Enlightenment.

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Edited by Peter Langford, Ian Bryan and John McGarry

Hans Kelsen and the Natural Law Tradition provides the first sustained examination of Hans Kelsen’s critical engagement, itself founded upon a distinctive theory of legal positivism, with the Natural Law Tradition. This edited collection commences with a comprehensive introduction which establishes the character of Kelsen’s critical engagement as a general critique of natural law combined with a more specific critique of representative thinkers of the Natural Law Tradition. The subsequent chapters are then devoted to a detailed analysis of Kelsen’s engagement with prominent theorists from the Natural Law Tradition. The volume concludes with an exploration, focusing upon the delineation of a non-positivist legal theory in the debate between Robert Alexy and Joseph Raz, of the continued presence of Kelsenian legal positivism in contemporary legal theory.

The Corporation, Law and Capitalism

A Radical Perspective on the Role of Law in the Global Political Economy

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Grietje Baars

In The Corporation, Law and Capitalism, Grietje Baars offers a radical Marxist perspective on the role of law in the global political economy. Closing a major gap in historical-materialist scholarship, they demonstrate how the corporation, capitalism’s main engine from city-state and colonial times to the present multinational, is a masterpiece of legal technology. The symbiosis between law and capital becomes acutely apparent in the question of ‘corporate accountability’. Baars provides a detailed analysis of corporate human rights and war crimes trials, from the Nuremberg industrialists’ trials to current efforts. The book shows that precisely because of law’s relationship to capital, law cannot prevent or remedy the ‘externalities’ produced by corporate capitalism. This realisation will generate the space required to formulate a different answer to ‘the question of the corporation’, and to global corporate capitalism more broadly, outside of the law.

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Sara Lagi

Abstract

In 1955, Hans Kelsen published an essay, entitled Foundations of Democracy, where he defined his conception of democracy through a critique of the democratic theology of Christian inspiration, represented by three prominent thinkers – Emil Brunner, Karl Niebhur and Jacques Maritain who, for Kelsen, embodied the resurgence of a neo-jusnaturalism. In response to their theories, posing democracy as a problem of justice and conformity to “superior, universal values”, Kelsen elaborated and defended the interconnectedness between relativism, freedom and a positivist conception of law as the central components of modern, parliamentary democratic systems based upon individual responsibility and the respect for fundamental liberties.

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Edited by Peter Langford, Ian Bryan and John McGarry

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Gaëlle Demelemestre

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In his work of 1928, Kelsen undertakes a systematic comparison of natural law and positive law in order to provide an enhanced comprehension of their specificities. This centres upon the difference of their nature and origin in which natural law is subject to critique in comparison to a theory of positive law based upon the principle of imputation. The hierarchical structure of norms of positive law is founded upon a deductive movement in which the Kelsenian conception situates us in a systematic, self-referential system. The Kelsenian theory of positive law, offers a detached description of positive law which propounds a theory of validity which merely requires the particular legal norm to result, at each level of the hierarchy, from the competent authority. However, this is one of the most perplexing aspects of Kelsenian project of a legal science of positive law: how could positive law, as an entirely human creation, possibly be free of any evaluation? Is it sufficient, for an authority, to be empowered to make the law for it to have the power to compel? The relevance of a return to Althusian legal theory results from the fact that Althusius develops his ideas in response to a self-centred theory of power and law which is, analogous to the Kelsenian position, unreceptive to evaluative criticism. This chapter will, through an examination of Althusian theory, indicate how the power to coerce can claim to be sovereign and yet integrate supervisory bodies responsible for regulating its validity.

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Peter Langford and Ian Bryan

Abstract

A significant part of Kelsen’s work is devoted to the methodological separation of a theory of positive law from natural law. The predominant impression of this process is of a determination to entirely sunder the conceptual framework of positive law from any continuing reliance upon natural law. However, certain of Kelsen’s works involve the appropriation of the notion of civitas maxima from the Jus Gentium Methodo Scientifica Pertractatum (1749) of Christian Wolff. The presence of this notion immediately raises the question of the relationship between Kelsen’s theoretical framework and the specific conception of natural law developed by Christian Wolff. It is through an examination of the transformation of this notion of civitas maxima that an important aspect of Kelsen’s relationship to the natural law tradition becomes apparent. The appropriation will be traced through the initial discussion in Kelsen’s Das Problem der Souveränität und die Theorie des Völkerrechts. Beitrag Zu Einer Reinen Rechtslehre (1920/1928), and its further exposition and development in Kelsen’s 1926 Lecture Course (‘Les Rapports de Système entre le Droit Interne et le Droit International’) at the l’Académie de droit international, in the Hague. In this manner, the significant methodological divergences between a Kelsenian theory of positive law, as a theory of legal monism according primacy to international law, and the Wolffian theory of natural law, as a theory of the law of nations, will become evident. This methodological divergence, however, should not obscure a more than residual affinity between Kelsen and Wolff concerning the cosmopolitical orientation of their thought.

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Ana Dimiškovska

Abstract

In this paper, an attempt is made to analyze the argumentative aspects of Kelsen’s critique of Natural Law Theory, as developed in the relevant segments of his Pure Theory of Law, in the framework of the general problem of grounding the normativity of law. This critique is based on the idea that the main limitation of Natural Law Theory is its search for the foundation of validity and justification of the legal order in a transcendent value (justice, peace etc.) or meta-legal authority (God, nature, etc.). On the contrary, according to Kelsen, such foundation could be established only in a transcendental way, that is, by exploring the necessary condition of possibility of existence of that order as a system of objectively valid legal norms describable as the rules of law. The analysis of the role that transcendental argumentation of Kantian (or Neo-Kantian) type plays in Kelsen’s critique of Natural Law Theory is undertaken in accordance with the thesis that Kelsen’s argumentative strategy involves two successive steps. The first aims at establishing the status of the “basic norm” (Grundnorm) as transcendental-logical presupposition of the normative interpretation of law, emphasizing its epistemological and hypothetical character. Then, the second step consists in applying the concept of the basic norm in the reconstruction of a “logically correct” Natural Law Theory, in order to demonstrate the inherent limitations of its absolutist, “metaphysical” pretensions and the necessity of their relativisation.