Renewing Legal Theory: History and the Unity of Legal Things
52 Pages Posted: 27 Feb 2013 Last revised: 19 Apr 2013
Date Written: February 27, 2013
This is a comprehensive, speculative, non-naturalist and historicist framework of a theory of law. I address the relationship between nature and law in general; the nature of law; the nature and taxonomy of legal things; the effect of the Enlightenment on legal theory; the relationship between science and law, and between law and history; the poverty and dangers of both positivism and natural law theory; and I address several philosophical issues that are concomitant to an understanding of law in general, including the role of the universal, the centrality of the vision of life; the relationship between life and consciousness (critiquing Nagel’s new book in the process), consciousness and history, and history and law; sacrifice; evil, and the future, among other things. I explicitly place myself in the Aristotelian/Hegelian traditions.
As a subtext, I grapple with containing the systematic problem science presents to legal/political order. By laying the groundwork for a renewal of legal theory outside of the constraints of positivism and natural law the framework also lays the groundwork for a reevaluation of the role science should play in the political/legal order, and therefore of science itself. The mechanism for these reevaluations is enabled by the specific grounding of the theory in the findings of neuroscience. Neuroscience teaches one of two irreconcilable things: either man has no free will; or there is a scope of free and real capacity for the mature human to make choices, to exercise free will (within constraints). The first of these two conclusions must be wrong because it contradicts not only experimental findings about man, but it contradicts the experience of every mature human. It is a philosophical conclusion based on Enlightenment metaphysics of science. If man has no free will, there is no basis for political order, for responsibility, etc., an argument we are familiar with but fail to understand and follow to its logical and historical implications, as now I do. I begin my argument with a theory of consciousness and freedom.
Keywords: jurisprudence, legal theory, history of the law, the Enlightenment (and the law), science and law, positivism, natural law theory, legal historicism, constitutionalism, the US Constitution
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