bluuebunny/crossref_metadata_2025 huggingface dataset:
Utopianism
Authors: Sargent Lyman Tower
Published: September 2018

Utopianism is the general label for a number of different ways of dreaming or thinking about, describing or attempting to create a better society. Utopianism is derived from the word utopia, coined by Thomas More. In his book Utopia (1516) More described a society significantly better than England as it existed at the time, and the word utopia (good place) has come to mean a description of a fictional place, usually a society, that is better than the society in which the author lives and which functions as a criticism of the author’s society. In some cases it is intended as a direction to be followed in social reform, or even, in a few instances, as a possible goal to be achieved.

The concept of utopianism clearly reflects its origins. In Utopia More presented a fictional debate over the nature of his creation. Was it fictional or real? Was the obvious satire aimed primarily at contemporary England or was it also aimed at the society described in the book? More important for later developments, was it naïvely unrealistic or did it present a social vision that, whether achievable or not, could serve as a goal to be aimed at? Most of what we now call utopianism derives from the last question. In the nineteenth century Robert Owen in England and Charles Fourier, Henri Saint-Simon and Étienne Cabet in France, collectively known as the utopian socialists, popularized the possibility of creating a better future through the establishment of small, experimental communities. Karl Marx, Friedrich Engels and others argued that such an approach was incapable of solving the problems of industrial society and the label ‘utopian’ came to mean unrealistic and naïve. Later theorists, both opposed to and supportive of utopianism, debated the desirability of depicting a better society as a way of achieving significant social change. In particular, Christian religious thinkers have been deeply divided over utopianism. Is the act of envisaging a better life on earth heretical, or is it a normal part of Christian thinking?

Since the collapse of communism in eastern Europe and the former Soviet Union, a number of theorists have argued that utopianism has come to an end. It has not; utopias are still being written and intentional communities founded, hoping that a better life is possible.
Violence
Authors: Coady C.A.J.
Published: September 2018

Violence is a central concept for much discussion of moral and political life, but lots of debate employing the concept is confused by the lack of clarity about its meaning and about the moral status it should have in our development of public policy. Wide understandings of the term – for instance, structural violence – not only include too much under the name of violence, but also put an excessively negative moral loading into the concept. This is also a problem for some other definitions of violence, such as legitimist definitions, which treat violence as essentially the illegitimate use of force. It is better to confront directly the important and disturbing claim that violence is sometimes morally permissible than to settle it by definitional fiat.
War and peace, philosophy of
Authors: Nardin Terry
Published: September 2018

The war/peace dichotomy is a recurrent one in human thought and the range of experience it interprets is vast. Images of war and peace permeate religion, literature and art. Wars, battles, pacts and covenants appear as outcomes and antecedents in historical narratives. Recurrent patterns of warlike and pacific behaviour invite scientific explanations in terms of underlying biological, psychological or economic processes. War and peace are also often matters of practical concern, predicaments or opportunities that call for individual or collective action. While philosophers have explored all these ways of looking at war and peace, they have paid most attention to the practical aspects of the subject, making it part of moral and political philosophy.

Practical concern with war and peace can go in either of two main directions, one focusing on war and the other on peace. Those who doubt that war can be abolished naturally worry about how it can be regulated. So long as war is possible, there will be principles for waging it. Whether such principles should limit war-making to ends like self-defence or leave the choice to the discretion of political and military leaders is a matter of continuing dispute. Nor is there agreement regarding restrictions on the conduct of war, some holding that belligerents need only avoid disproportionate damage, others that it is morally wrong to harm innocents (for example, noncombatants). In situations of emergency both limits may give way, and moralists have debated whether this relaxation of standards is defensible. Disputes over the principles governing war raise difficult questions about action, intention and the character of morality itself.

If we think that wars can be prevented, it becomes important to focus on the conditions of permanent peace. Some who do this conclude that peace depends on the conversion of individuals to an ethic of nonviolence, others that it requires strengthening the rule of law. According to a powerful version of the latter argument, the absence of law creates a condition in which persons and communities are at liberty to invade one another: a condition that, in Hobbes’s classic metaphor, is a ‘state of nature’ which is also a perpetual state of war. While treaties of peace may terminate particular wars, only political institutions that establish the rule of law within and between communities can provide security and guarantee peace.
Bodin, Jean (1529/30–96)
Authors: Franklin Julian H.
Published: September 2018

Jean Bodin was one of the great universal scholars of the later Renaissance. Despite political distractions, he made major contributions to historiography and the philosophy of history, economic theory, public law and comparative public policy, the sociology of institutions, as well as to religious philosophy, comparative religion and natural philosophy. Among his most celebrated achievements are his theory of sovereignty, which introduced a new dimension to the study of public law, and his Neoplatonist religion, which opened new perspectives on universalism and religious toleration.

Many of these intellectual positions, moreover, were responses, at least in part, to great political issues of the time. Against doctrines of popular sovereignty and the right of resistance put forward in the course of the religious wars, Bodin sought to show that the king of France was absolute. Against the widespread corruption and laxity that weakened and undermined the monarchy, he argued for administrative reform. And against the party that pressed the king to impose religious uniformity, he cautiously supported religious toleration. In all these respects Bodin’s thought helped to inform the policies of the early Bourbon dynasty esatblished by Henry IV.
Constant de Rebecque, Henri-Benjamin (1767–1830)
Authors: Wood Dennis
Published: September 2018

Benjamin Constant combined the activities of a religious historian, autobiographer and novelist with a career as a political theorist and politician. Constant’s intellectual outlook was shaped by French Enlightenment thought and two years spent at Edinburgh University in 1783–5 added experience of observing the British government and constitution at work. Through all of Constant’s writings runs a consistent theme: the necessity of safeguarding the freedom of the individual in modern society. At the end of his life he summed up his liberalism thus: ‘Freedom in all things, in religion, philosophy, literature, industry and politics. And by freedom I mean the triumph of the individual both over an authority that would wish to govern by despotic means and over the masses who would claim the right to make a minority subservient to a majority’ (1957: 835). Constant’s political activity and his writings, which some consider prophetic of the growth of modern totalitarian regimes, have been influential in the development of liberal thought in Europe and the USA.
Filmer, Sir Robert (1588–1653)
Authors: Sommerville Johann P.
Published: September 2018

Filmer was one of the most important political thinkers in seventeenth-century England, and the author of Patriarcha. Locke replied to this and other works by Filmer in the Two Treatises of Government – perhaps the most famous of all works of liberal political theory. Filmer argued that notions of mixed or limited government were false and pernicious, and that the powers of all legitimate rulers were derived not from the people but directly from God, to whom alone rulers were accountable. Filmer’s contemporaries commonly held that the authority of a father and husband over his family stemmed not from the consent of his wife and children but from the natural and divinely appointed order of things. Filmer harnessed such ideas to the cause of royal absolutism by arguing that the state and the family were essentially the same institution.
Gramsci, Antonio (1891–1937)
Authors: Bellamy Richard
Published: September 2018

An Italian Marxist theorist and activist, Gramsci’s main contribution lies in his critique of dialectical materialism. This school treated both the power of the bourgeois state and the prospects for its revolutionary overthrow and replacement by a stateless communist society as necessary consequences of the autonomous development of the economic forces of production. In contrast, Gramsci emphasized the relatively independent role played by politics and culture in upholding the authority of the state and in organizing popular resistance to it. A canonical figure of Western Marxism, he is credited with formulating a strategy applicable to all communist parties operating in the democratic states of advanced industrial societies. However, the posthumously published Quaderni del carcere (Prison Notebooks) elaborate on theoretical questions that had preoccupied Gramsci throughout most of his political career and which reflect peculiarities of the Italian political situation and traditions.
Harrington, James (1611–77)
Authors: Goldie Mark
Published: September 2018

Harrington was the premier English republican political theorist. His The Commonwealth of Oceana (1656), published soon after the Civil War, analysed the collapse of monarchy and recommended institutions for a perfect commonwealth. He argued that forms of government were shaped by modes of land tenure; the decline of the feudal aristocracy and rise of the gentry rendered monarchy inviable. His proposed republic entailed regular elections for all public offices and secret ballots among a citizenry of independent gentlemen. Harrington influenced English, American and French radicals throughout the eighteenth century. Today he tends to be a talisman for those who would inject an aspect of ‘civic republicanism’ or ‘public virtue’ into contemporary politics, by contrast with the liberal rights theories of the natural jurisprudence tradition.
Kautsky, Karl Johann (1854–1938)
Authors: Tudor H.
Published: September 2018

Karl Johann Kautsky became the leading German socialist theoretician at the time of the Second International and the authoritative exponent of ’orthodox Marxism’. He was a close associate of Engels, editor of Die Neue Zeit from 1883 until 1917, and author of numerous political, historical and theoretical works. He clashed with Bernstein in the ‘revisionist debate’ in the late 1890s and with Lenin during the Russian Revolution.
Lassalle, Ferdinand (1825–64)
Authors: Tudor H.
Published: September 2018

Ferdinand Lassalle was one of the principal founders of German social democracy and a strong advocate of state socialism. He was associated with Marx, although he was not himself a Marxist but rather a radical philosophical idealist in the Hegelian tradition.
Luxemburg, Rosa (1871–1919)
Authors: Tudor H.
Published: September 2018

Rosa Luxemburg, of Polish-Jewish origins, was for most of her life a prominent activist and theorist on the radical left of the German Social Democratic Party. She defended revolutionary Marxism against the ‘revisionist’ critique ofEduard Bernstein; she developed an original and controversial Marxist theory of imperialism; and she advocated direct revolutionary action by the masses, as contrasted with Lenin’s insistence on ‘democratic centralism’ and the leading role of the Party.
Meinecke, Friedrich (1862–1954)
Authors: Hausheer Roger
Published: September 2018

Friedrich Meinecke was a German historian of moral and political ideas who addressed the problems of his age through critical study of the writings of past thinkers. He studied at the universities of Berlin and Bonn, before becoming a state archivist in Berlin for fourteen years. He went on to hold professorships at Strasbourg, Bonn and Berlin. He contributed to political thought through books on cosmopolitanism and nationalism, on the morality of states and on historicism. In these works he re-examined the European tradition of moral and political thought, attempting especially to find a middle way between the universalist and cosmopolitan ethic of the Enlightenment and the nineteenth-century belief in the particularity and historical uniqueness of national cultures. His life spanned the entire period from Bismarck to Hitler, and he sought to bring his deep historical learning to bear on the ethical dilemmas facing Germans during this time.
Schumpeter, Joseph Alois (1883–1950)
Authors: Swedberg Richard
Published: September 2018

Schumpeter is best known for his seminal work in economics, but he also made important contributions to the fields of political science and sociology. He aimed to create a broad economic science that he called ‘social economics’ (Sozialökonomik), which was to include not only economic theory but also economic history, statistics and economic sociology. Inspiration for this project came in particular from his colleague Max Weber.

As an economist Schumpeter is primarily remembered for his theory of the entrepreneur and for his emphasis on the dynamic aspects of economic reality: capitalism, as he saw it, meant first and foremost change. But Schumpeter also made a number of interesting observations about theorizing in economics and the role that vision plays in the work of the economist. His trenchant critique of the conventional theory of democracy and advocacy of a more realistic theory is generally recognized as a major contribution to political theory. Many of Schumpeter’s most important ideas on economics and politics can be found in his bookCapitalism, Socialism and Democracy (1942), which has become something of a classic in the social sciences.
Citizenship
Authors: Kymlicka Will
Published: September 2018

Within political philosophy, citizenship refers not only to a legal status, but also to a normative ideal – the governed should be full and equal participants in the political process. As such, it is a distinctively democratic ideal. People who are governed by monarchs or military dictators are subjects, not citizens. Most philosophers therefore view citizenship theory as an extension of democratic theory. Democratic theory focuses on political institutions and procedures; citizenship theory focuses on the attributes of individual participants.

One important topic in citizenship theory concerns the need for citizens to actively participate in political life. In most countries participation in politics is not obligatory, and people are free to place private commitments ahead of political involvement. Yet if too many citizens are apathetic, democratic institutions will collapse. Another topic concerns the identity of citizens. Citizenship is intended to provide a common status and identity which helps integrate members of society. However, some theorists question whether common citizenship can accommodate the increasing social and cultural pluralism of modern societies.
Nozick, Robert (1938–2002)
Authors: Wolff Jonathan , Blackburn Simon
Published: September 2018

Although Robert Nozick published on an enormous range of topics, he is best known as a political philosopher, and especially for his powerful and entertaining statement of libertarianism. In Anarchy, State, and Utopia (1974), Nozick presents an image of a fully voluntary society, in which people cooperate only on terms which violate no one’s rights.

Nozick’s other major contributions to philosophy include an analysis of knowledge, and an accompanying response to scepticism, an account of personal identity and contributions to decision theory and the theory of rationality.
Pareto principle
Authors: Miller David
Published: September 2018

A social state is said to be Pareto-efficient when there is no feasible alternative to it in which at least one individual is better off while no individual is worse off. The Pareto principle tells us to move from Pareto-inefficient to Pareto-efficient states. Suppose a large basket of fruit is shared among a group in some way or another – one apple, two peaches, a dozen cherries each, for instance. If the fruit can be exchanged so that at least some people get more enjoyment from what they have, and no one gets less, the Pareto principle instructs us to do so; indeed, it instructs us to carry on exchanging until no more improvements of this kind are possible.
Trotsky, Leon (1879–1940)
Authors: Callinicos Alex
Published: September 2018

Trotsky’s chief claim to attention is as the leader of the Russian Revolution who opposed the consolidation of the Stalin regime in the Soviet Union and sought to dissociate the classical Marxist tradition from that regime and its official ideology. In doing so, however, he developed a version of Marxism which sought to give proper place to the ‘subjective factor’ in history, and at the same time to integrate Marx’s social theory into a broader, dialectical theory of nature.
Sustainability
Authors: Holland Alan
Published: September 2018

Sustainability is a property of any activity, practice, process or institution that has the capacity to be continued in more or less the same way indefinitely. The concept has risen to prominence in recent years in response to the realization that continued social and economic development may not be sustainable in view of the unprecedented environmental changes that it brings about. Development is said to be sustainable, in the words of the ’ Brundtland Report’, when it ’ meets the needs of the present without compromising the ability of future generations to meet their own needs’. This prescription is widely perceived to capture and to integrate a number of existing social and political objectives (justice, the alleviation of poverty and the protection of the environment), and following the United Nations Conference on Environment and Development held in Rio de Janeiro in 1992 it is now the declared objective of local and national governments worldwide, as well as of a large number of business and non-government organizations. Given its purported practical relevance, a great deal of intellectual effort has been concentrated upon developing a viable conception of sustainability for policy purposes. Economic and ecological models of the concept have been developed, and criticized. Recent attention has focused more on the political and institutional dimensions of the problem.
Political philosophy, Confucian
Authors: Chan Joseph
Published: September 2018

Confucianism is a tradition of ethical and political thought in which ethics and politics are tightly connected. Confucianism endorses a politics of virtue that can be understood in two ways. First, politics in Confucianism aims to promote certain virtues and social relationships it defines as good; second, Confucianism conceives that politics can be successful only if the people in power are virtuous. Confucian political philosophy is therefore a kind of perfectionism which says that the state should promote the good life, and it is therefore directly opposed to the contemporary liberal view that the state and its officials should take no stance regarding what constitutes the good life. This entry introduces the Confucian vision of politics and explores its implications for three issues, namely: the source of political authority, the scope of people’s rights and liberties, and the responsibilities of the state towards its people’s welfare. The politics of virtue as conceived in Confucianism naturally tends to endorse rule by the wise instead of rule by the many; it tends to stress the need for people to cultivate virtues rather than to enjoy rights and liberties; and it sees people’s care for the poor and needy as stemming from virtues or duties rather than imperatives of social equality or justice. Despite this natural tendency, however, it is not obvious that the politics of virtue leaves no room for democracy, rights, and egalitarian justice. Indeed some commentators have argued that a number of these liberal-democratic ideas are either present in Confucianism or consistent with its central tenets. It is arguable that classical Confucian texts do not contain any ideas of democracy, human rights, or egalitarian justice, but do leave room for endorsement of the first two ideals under certain circumstances.
Global justice, recent work on
Authors: Caney Simon
Published: September 2018

Until recently the prevailing view among many political philosophers was that global justice required that states honour each other’s independence, keep their treaties, and comply with the rules of the just war tradition. This view has long been challenged by realist thinkers, inspired by Machiavelli and Hobbes, who think it idealistic and utopian. The last 35 years have seen a marked increase in the interest on the part of political philosophers in the question of whether there are global principles of justice, and if so, what they are. A number of political philosophers have defended a cosmopolitan conception of global justice. Some, like Peter Singer, have drawn on a consequentialist political morality to defend global principles of justice. Others employ social contract theory to defend universal principles of justice and others ground their commitment to global principles of justice on human rights. These cosmopolitan perspectives have been challenged from a number of perspectives. Some, like John Rawls, argue that a cosmopolitan approach is insufficiently tolerant of non-liberal societies and defend instead a world order built around the ideal of a society of decent states. Others, like David Miller, defend the moral importance of nationality and national self-determination. Underlying these differences are different assumptions about the circumstances under which principles of justice apply. Cosmopolitans tend to think that the global realm is morally analogous to the domestic realm and hence that the principles of justice that apply in the domestic realm (such as, say, utilitarianism or rights) can be exported to the global realm. Their critics tend to think that the global realm is disanalogous to the domestic realm in morally relevant ways; hence they hold either that no principles of justice apply at the global level (realists) or that some do but they are different in nature to those that govern relations between members of the same state or nation (Rawls and nationalists).
Historical redress
Authors: Vernon Richard
Published: September 2018

Historical redress comprises restitution (the return of unjustly appropriated items), compensation (transfers of resources made in acknowledgment of unjust appropriations), and apologies or memorial events; all with respect to injustices the victims of which are now deceased, or at least with respect to practices that have ceased for some considerable time, and are ‘historical’ in one of these senses. Important cases include redress for slavery and for aboriginal policies, for wartime atrocities or other injustices, and demands for the return of culturally important artefacts. The topic is controversial because the basis of present responsibility for past harms is disputed, because the very possibility of redress is sometimes questioned, and because the issue of priority between past and present injustices is unsettled. Advocates of redress propose that grievances from the past retain their moral force, while sceptics maintain that they lose force with the passage of time, or, at least, that present injustices take priority over them.
Human rights
Authors: Jones Peter
Published: September 2018

Human rights are rights ascribed to human beings simply as human beings. While people may possess some rights only if they occupy a special position or role, such as citizen, doctor or promisee, the claim of human rights theory is that there are other rights that everyone possesses merely in virtue of being human. Historically, the idea of human rights is closely associated with that of natural rights and both of these sorts of right have been conceived, in the first instance, as moral rights. However, since the United Nations promulgated the Universal Declaration of Human Rights (UDHR) in 1948, human rights have been elaborated and provided for in a host of international declarations and conventions and in the domestic law of many states, so that human rights now frequently have a legal or quasi-legal status. The general idea of human rights has been very widely accepted, but there is disagreement over which rights are human rights, over how these rights should be justified, and over their absolute or defeasible status. The difficulty of combining the universality of human rights with respect for cultural difference is also a major preoccupation of both proponents and critics of human rights.
Political philosophy, Jewish
Authors: Zohar Noam J. , Walzer Michael
Published: September 2018

Jewish ideas about politics are embedded in the traditional genres of Judaic discourse, more often legal or homiletic than systematically philosophical. A defining feature of this tradition is its historical setting, as for most of their history the Jews lacked a state. Still, central issues of political thought were addressed primarily in the context of Judaism’s characteristic political entity, the medieval kahal – the by and large autonomous urban Jewish community. Discussions of issues such as authority, justice, or membership were informed by the Talmudic legal tradition, by biblical memories of Israel’s monarchic period and by dreams of restoration, inspired by ancient prophecies regarding the messianic era.

The central form defining political authority and allegiance is the covenant, enacted at Sinai between God and the Israelite people, whom He had elected and liberated from Egypt. The people recognized God’s supreme authority, consenting to live by His teachings, the Torah. The significance and demands of this divine election, and the parameters and requirements of membership of the covenantal community, are much-debated issues in the Jewish political tradition. Of equal concern are the concrete implications of divine sovereignty. On one view, this precludes any institutionalized form of human authority. On other views, divine authority is invested in one or more of various human agents, from kings and priests to prophets and rabbis; strikingly, the latter used their own reason to interpret God’s words, and in their assemblies would take a vote to decide among interpretations. In uneasy co-existence with these, the tradition includes prominent justifications for human political agency, the legitimacy of which derives not from divine authorization but from popular consent.

Living as a (sometimes) tolerated minority under non-Jewish rulers, the Jews dreamed of redemption, imagining the messianic king as leading them to triumph. Yet the foundational tale in Genesis is of humankind as one family, and the biblical prophets envisage world peace.

Since 1948 the state of Israel has become the locus for re-examination of the Jewish political tradition. A crucial question has been to what extent this tradition, which includes proto-democratic as well as theocratic elements, can inform political discourse in a modern democracy whose citizens are mostly Jewish but include also significant non-Jewish minorities.
Terrorism
Authors: Rodin David
Published: September 2018

In recent years there has been an upsurge of interest in the philosophical and ethical analysis of terrorism. Despite this, ‘terrorism’ remains a contested and difficult concept. The reasons for this are obvious: ‘terrorism’ is a highly charged term often used in rhetorical and inconsistent ways (as suggested by the old saw that ‘one man’s terrorist is another man’s freedom fighter’). Philosophical debate has focused on two related areas. The first concerns how terrorism should be defined. This debate has revolved around four broad questions: 1) Who are the victims of terrorism? 2) Who are its agents or perpetrators? 3) What are the distinctive ends or goals of terrorism? 4) What are its tactical or operational features? The second area of debate concerns the moral evaluation of terrorism. A key question here is whether terrorism is always wrong, or whether there can be cases in which it is morally justified.
Crime and punishment
Authors: Duff R.A.
Published: September 2018

An account of how state punishment can be justified requires an account of the state, as having the authority to punish, and of crime, as that which is punished. Crime, as socially proscribed wrongdoing, may be formally censured, and may lead to the payment of compensation to those injured by it – but why should it also attract the kind of ‘hard-treatment’ punishment which characterizes a system of criminal law? How should we decide which kinds of wrongdoing should count as crimes?

Consequentialists justify punishment by its beneficial effects, notably in preventing crime by deterring, reforming or incapacitating potential criminals. They face the objection that the wholehearted pursuit of such goals would lead to injustice – punishment of those who do not deserve it. Even if that objection is met by imposing non-consequentialist constraints on the system, they also face the objection that a consequentialist system fails to respect criminals as responsible moral agents.

Retributivists hold that punishment must be deserved if it is to be justified, and that the guilty (and only the guilty) deserve punishment. Positive retributivists hold that the guilty should be punished as they deserve, even if this will achieve no consequential good. Negative retributivists hold that only the guilty may be punished, but that they should be punished only if their punishment will be beneficial. The main objection to retributivism is that it fails to explain why the guilty deserve punishment.

Some retributivists have argued that the guilty deserve censure, and that punishment serves to communicate that censure. But why should we use ‘hard treatment’ such as imprisonment or fines to communicate censure? Does the hard treatment function as a consequentialist deterrent? Or could such punishments serve to reform or educate criminals, thus bringing them to repent their crimes and restoring their relationships with those they have wronged?

A theory of justified punishment must be related to our existing penal institutions. It must, in particular, have something to say about sentencing: about what kinds of punishment should be imposed, and about how sentencers should decide on the appropriate severity of punishment. A central issue concerns the role of the principle of proportionality: the demand that the severity of punishment should be proportionate to the seriousness of the crime.

But we must also ask whether our existing penal practices can be justified at all. We must face the abolitionists’ argument that punishment should be abolished in favour of social practices which treat ‘crimes’ not as wrongdoings that must be punished, but as ‘conflicts’ which must be resolved by a reconciliatory rather than a punitive process.
Critical Legal Studies
Authors: Norrie Alan
Published: September 2018

Critical Legal Studies first developed in the USA in the latter half of the 1970s. Drawing on the political inspiration of the contemporary New Left, it was an intellectual movement committed to radicalizing legal theory by bringing together US legal realism and modern European social theory. In so doing, it sought to provide a fundamental critique of the nature and place of law in modern capitalist society.

In its first phase, its main target was the liberal positivist theories of law that dominate Anglo-American jurisprudence. Such theories inform both the organization of the traditional legal curriculum and the nature of legal practice. By contrast, Critical Legal Studies saw law as based upon deeply contradictory premises, so that the orthodox positivist claim that law could be in principle rational and coherent was rejected in favour of the ‘indeterminacy thesis’. Legal decisions were in truth a matter not of logical deduction but of choice. They could always go one way or the other. Ultimately, therefore, it was an open political decision made by a judge which determined a legal conclusion. The idea of the ‘rule of law’ operating above politics was rejected, but regarded as important in terms of the political legitimation function it served in Western societies.

While the name ‘Critical Legal Studies’ has a US provenance, a number of different critical legal projects can be identified. These projects reflect the broader character of the national traditions of which they are a part. European approaches, particularly the German and the British, reveal a more sustained engagement with modern and postmodern social theory. However, as a result of problems in the original project, Critical Legal Studies has entered into a second phase in the USA in which there is an increasing interest in social theory. The result has been a convergence of European and US concerns, but around a highly fragmented group of modern and postmodern social theories. Nietzsche, Foucault, Derrida and Habermas have been introduced into legal theory while Marx and Weber, the original theoretical mainstays of a critical approach to law, have been sidelined. There is a danger in this that Critical Legal Studies will become little more than a group of theorists talking among themselves. While the original US critique of legal doctrine may have run out of steam for want of sufficient theoretical sophistication, it is important not to lose sight of its direct focus on law and legal forms. It is arguable that the recent ‘turn to theory’ must validate itself in terms of the contribution it is able to make to a critical understanding of law and its practices; also that an important, as yet unaddressed, question concerns the relationship between postmodern forms of criticism and sociological analyses of the development of law.
Legal evidence and inference
Authors: Schum David A.
Published: September 2018

In the field of law there is a rich legacy of scholarship and experience regarding the properties, uses and discovery of evidence in inferential reasoning tasks. Over the centuries our courts have been concerned about characteristics of evidence that seem necessary in order to draw valid and persuasive conclusions from it. Thus, they have been led to consider such matters as the relevance of evidence, the credibility of the sources from which it comes, and the probative or inferential force of evidence. Court trials usually involve inferences about events in the past. The past can never be completely recovered. In addition, evidence about past events is frequently inconclusive, conflicting or contradictory, and often vague or ambiguous. The result is that inferences about past events are necessarily probabilistic in nature. Our courts have also been concerned about whether the interests of fairness require that, on occasion, evidence might be inadmissible, even though relevant and credible. Evidential and inferential issues such as the ones just mentioned are also of concern to philosophers and persons in other disciplines. This entry concerns several evidential issues of particular interest in legal contexts.
Justice, equity and law
Authors: Tasioulas John
Published: September 2018

Laws are intended to achieve justice, but the application of an otherwise just law may yield an injustice in the circumstances of a particular case. This is because laws are framed in terms of general rules which cannot adequately provide in advance for all possible variations in relevant circumstances. Equity modifies the rigid application of the law in such cases in order to secure justice in the light of all the relevant circumstances. So, in Aquinas’ example, the law may justly require the closure of the city gates after a certain hour, but officials may equitably decree the opening of the gates during the legal hours of closure in order to save fighters defending the city who are being pursued by an enemy. In this sense, the equitable decision is not distinct from justice, but rather secures justice in the particular case by remedying the deficiencies of positive law retrospectively at the point of application. The question of the proper relationship between justice, equity and law has been explored both by a rich philosophical tradition that finds its classic statement in the writings of Aristotle, and by the world’s major legal traditions.

At least two major problems arise for this complex of ideas. First, that of the ‘decadence’ of equity. As equity is incorporated into formal processes of legal adjudication, for instance in the form of ‘maxims’ of equity or equitable ‘doctrines’, it comes to acquire the generality of positive law. This creates the problem that the so-called equitable maxims or doctrines may themselves then be applied in a strict way that leads to injustice in the particular case, which is precisely the problem equity is meant to remedy. Second, in securing justice by the deployment of discretion in the particular case equity also threatens an injustice. For it seems to involve a departure from the principle of legality, that is, the duty to apply pre-existing laws declared beforehand to those subject to them. In being adversely affected by the retrospectively operative discretion of the adjudicator, the party who would have benefited from the strict application of the law may regard the resort to equity as itself unjust.
Natural law
Authors: Finnis John
Published: September 2018

When made within the discourse of ethics, political theory, or legal theory or philosophy of law, the claim that there is a natural law is an offer to explain and defend certain claims often made, in different terms, in the discourse of moral argument, politics or law. In pre-theoretical moral discourse, certain choices, actions or dispositions may be asserted to be ‘inhuman’, ‘unnaturally cruel’, ‘perverse’ or ‘morally unreasonable’. In pre-theoretical political discourse, certain proposals, policies or conduct may be described as violations of ‘human rights’. In international law and jurisprudence, certain actions may be described as ‘crimes against humanity’ and citizens may claim immunity from legal liability or obligations by appealing to a ‘higher law’. A natural law theory offers to explain why claims of this sort can be rationally warranted and true. It offers to do so by locating such claims in the context of a general theory of good and evil in human life so far as human life is shaped by deliberation and choice. Such a general theory can also be called a general theory of right and wrong in human choices and actions. It will contain both (1) normative propositions identifying types of choice, action or disposition as right or wrong, permissible, obligatory and so on, and (2) non-normative propositions about the objectivity and epistemological warrant of the normative propositions.
Law, economic approach to
Authors: Coleman Jules L.
Published: September 2018

The development of an economic approach to legal practice has been the most important jurisprudential development in the last third of the twentieth century. Economic analysis has been offered as both a positive and a normative jurisprudence: as an analysis of important features of existing legal practices and as an ideal against which these practices ought to be evaluated. For some, economic analysis has a narrow explanatory range (in various fields of private law, corporations and taxation, and anti-trust law, for example), while others make broader claims for its ability to illuminate any area of law. Finally, there is a difference between those who focus on one explanation and those who focus on prediction, but all offer positive economic analysis of law based on the concept of economic efficiency as defined in welfare economics and applied to law by Coase, Posner, Calabresi and others.
Jurisprudence, historical
Authors: Stein Peter
Published: September 2018

Historical jurisprudence is the title usually given to a group of theories, which flourished mainly in the nineteenth century, that explain law as the product of predetermined patterns of change based on social and economic change. It is thus opposed both to theories that see law as essentially an expression of the will of those holding political power (positivist theories) and to those that see it as an expression of principles that are part of man’s nature and so applicable in any kind of society (natural law theories). The writers of the Scottish Enlightenment first connected the historical development of law with economic changes. In the nineteenth century, Savigny and Maine postulated grand evolutionary schemes, which purported to be applicable universally. They were, however, based on the development of ancient Roman law and could only with difficulty be applied to other systems. These schemes are now discredited, but in the twentieth century more modest studies have successfully related particular kinds of law to particular sets of social circumstances.
Institutionalism in law
Authors: Pintore Anna
Published: September 2018

‘Institutionalism’ is the name for an approach to the theory of law worked out in the late nineteenth and early twentieth centuries by a number of scholars from continental Europe, working mainly in independence from each other. Their common characteristics can be stated only in rather generic and negative terms. They are all critical of statalism, that is, too readily identifying law and state; of voluntarism, that is, treating will as an essential element of law; and of normativism, defining law as a body of norms. In positive terms, they have in common a generic emphasis on the social character of law, and a sense of the need to take a view of legal experience broader than that defined by its traditional boundaries, and to extend the ‘official’ catalogue of the sources of law.

Nowadays, there is new talk of institutionalism in the philosophy of law, but in a different sense, with reference to the idea of law as made up of institutional facts, that is, facts whose meaning depends on norms. This neo-institutionalism is normativist, analytical and hermeneutic in approach and has only the most tenuous links with classical institutionalism.
Legal concepts
Authors: Frandberg Ake
Published: September 2018

Concept-formation is an important component of law-formation. Well-developed legal orders are profoundly conceptual in nature. Throughout Western legal history, legislators have aimed at basing their law-making on concepts of a general scope (such as ‘property’, ‘possession’, ‘usufruct’, ‘criminal intent’ and many others) – and even more so legal scholars in their reconstruction and development of law. Legal thinking makes use of concepts with many different functions and varying logical status. A distinction can be made between concepts that are an integral part of law themselves (here called L-concepts) and concepts that belong to the professional vocabulary of lawyers and jurists in their handling of the law (J-concepts). Among the L-concepts there are on the one hand concepts whose meaning is totally determined by the rules of one single legal system and on the other hand concepts that pertain to two or more legal systems. The latter concepts have a comparative function.

J-concepts provide lawyers with a language enabling them to give an intellectual structure to the legal material, to characterize and discuss the professional-juridical handling of law and the methods used for performing that task, to specify the functions of law and to formulate the underlying values of (the handling of) the legal system.

There was a tendency in earlier legal philosophy to hypostasize legal concepts, for example, the concept of ‘right’ in classical natural-law doctrine: that is, to postulate real entities to which our concepts/terms refer. The legal philosophy of the twentieth century has to a large extent been a reaction against this tendency. This reaction has taken three different directions: (1) to reduce the abstract legal concepts to factual phenomena such as certain human behaviour or socio-psychological factors (mainly within US and Scandinavian realism); (2) to assign to legal concepts a normative ontological status, placing them in a world of norms, distinct from the world of facts; and (3) to analyse legal concepts in a contextual setting, that is, to find out how they function in actual legal discourse.
Legal idealism
Authors: Attwooll Elspeth
Published: September 2018

The term ‘legal idealism’ has various meanings. These include: the notion that laws, and the rights and duties they confer, genuinely exist, in which legal idealism is opposed to legal realism; the notion that law is intimately connected with moral or social values, in which legal idealism is opposed to legal positivism; the notion that one can move from certain premises about human reason and will to systematic principles for legal development and decision-making; and the notion that one can derive systematic principles of a similar kind from the requirements of social life. It is also sometimes used to imply too much faith in the capacity of law to solve problems. The enduring issues of legal idealism concern establishing systematic principles for legal development and decision-making.