'Beyond Legal Positivism and Natural Law?'

Langford, P. and Bryan, I., “Beyond Legal Positivism and Natural Law?”, pp.500-532, in Langford, P., Bryan, I. and McGarry, J. (eds.), Hans Kelsen and the Natural Law Tradition, (Leiden; Boston: Brill, 2019)

Posted: 6 Nov 2019

See all articles by Peter Langford

Peter Langford

Edge Hill University

Ian Bryan

Lancaster University

Date Written: Jan 2019

Abstract

The authors consider Schmitt’s post-World War II writings on the international legal order, focusing on the position and identity that Schmitt accords to the jurist as theologian of legal science. The authors observe that, for Schmitt, drawing on his wider politico-theological conception of history, the legal order is constituted through the dynamic of spatial appropriation, distribution and production. The role of the jurist, as theologian of legal science, is, according to Schmitt, to demarcate the nomoi of the earth, the configurations of global division and order, and to render their parameters intelligible. This chapter assesses the contemporary relevance of Schmitt’s legal and political thought and proceeds to contend that the notion of the common opens the possibility to think beyond the Schmittian conception of the jurist as theologian of legal science, of perpetual world disorder and of the restraining figure of the katechon. It is further contended that the notion of the common enables a reconceptualization of law and sovereignty, which overturns the exclusive Schmittian emphasis on law as spatial ordering by rendering it sensitive to the experience of injustice; a reconceptualization of law which, in turn, calls for a reconceptualization of the international legal order and the jurist.

Suggested Citation

Langford, Peter and Bryan, Ian, 'Beyond Legal Positivism and Natural Law?' (Jan 2019). Langford, P. and Bryan, I., “Beyond Legal Positivism and Natural Law?”, pp.500-532, in Langford, P., Bryan, I. and McGarry, J. (eds.), Hans Kelsen and the Natural Law Tradition, (Leiden; Boston: Brill, 2019), Available at SSRN: https://ssrn.com/abstract=3476322

Peter Langford

Edge Hill University ( email )

St. Helens Road
Ormskirk, Lancashire L39 4QP
United Kingdom

Ian Bryan (Contact Author)

Lancaster University ( email )

Lancaster LA1 4YX
United Kingdom

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