Hauerwasian Christian Legal Theory

This Essay, which was written for a Law and Contemporary Problems symposium on Stanley Hauerwas, tries to develop an account of public engagement in Hauerwas’ theology. The Essay distinguishes between two kinds of public engagement, “prophetic” and “participatory.” Christian engagement is prophetic when it criticizes or condemns the state, often by urging the state to honor or alter its true principles. In participatory engagement, by contrast, the church intervenes more directly in the political process, as when it works with lawmakers or mobilizes grass roots action. Prophetic engagement is often one-off; participatory engagement is more sustained. Because they worry intensely about the integrity of the church, Hauerwasians are more comfortable with prophetic engagement than the participatory alternative, a tendency the Essay calls the “prophetic temptation.” Hauerwasians also struggle to explain what can or should participatory engagement look like. After first comparing Hauerwas’s understanding of Jesus’s Sermon on the Mount with that of his two twentieth century predecessors, Walter Rauschenbusch and Reinhold Neibuhr, the Essay turns to Hauerwasian public engagement and the prophetic temptation. The Essay then considers the implications of Hauerwas’s theology for three very different social issues, the Civil Rights Movement, abortion, and debt and bankruptcy

Neoliberalism and the Crisis of Legal Theory

INTRODUCTION: Patients have the right to influence the care they receive, but their wish to participate in care decision-making is unclear. AIM: This study investigates whether participation in nursing documentation influences patient participation in care decision-making, mastery, self-esteem, empowerment and depressive feelings among adult in-patients with chronic disease. MATERIALS AND METHODOLOGY: Adult patients (n=39) with chronic diseases were randomized. The intervention group participated in nursing documentation. Upon departure, patients filled in questionnaires about participation in care decision-making, mastery, self-esteem, empowerment and depressive feelings. RESULTS: The majority of the patients preferred a collaborative or passive role regarding care decision-making. Lack of knowledge was one reason for non-participation. Having been diagnosed more than five years previously meant stronger empowerment. CONCLUSION: It is a challenge for nurses to find strategies to assess patients' wishes regarding participation in care decision-making. Nurses must support patients' knowledge of their disease and empowerment

The Legal Self: Executive processes and legal theory

When laws or legal principles mention mental states such as intentions to form a contract, knowledge of risk, or purposely causing a death, what parts of the brain are they speaking about? We argue here that these principles are tacitly directed at our prefrontal executive processes. Our current best theories of consciousness portray it as a workspace in which executive processes operate, but what is important to the law is what is done with the workspace content rather than the content itself. This makes executive processes more important to the law than consciousness, since they are responsible for channeling conscious decision-making into intentions and actions, or inhibiting action.We provide a summary of the current state of our knowledge about executive processes, which consists primarily of information about which portions of the prefrontal lobes perform which executive processes. Then we describe several examples in which legal principles can be understood as tacitly singling out executive processes, including principles regarding defendants’ intentions or plans to commit crimes and their awareness that certain facts are the case, as well as excusatory principles which result in lesser responsibility for those who are juveniles, mentally ill, sleepwalking, hypnotized, or who suffer from psychopath

Legal theory and epistemic values: against authoritarian interpretivism

In his new book, R. Dworkin advocates the unity of values thesis. He wants to circumscribe morality as a proper epistemological domain which is methodologically different from scientific inquiry. The epistemological independence of morality is supposed to be a consequence of the irreducible fact/value dichotomy. This paper sustains that unity of values thesis is methodologically correct; all moral reasoning must be a constructive interpretation of its meaning. However, that author fails to recognize that not every axiological interpretation implies moral consequences. From H. Putnam’s pragmatic realism, this paper intends to demonstrate that much of scientific inquiry relies on values interpretation, and that this kind of reasoning is morally neutral. Finally, it should be clear that epistemological choices in legal positivism – e.g. the decision on which aspects of social interaction are theoretically relevant – should not disturb the soundness of its argument nor should it be read as if it had moral implications. This paper concludes that positivist theories cannot be ruled out. Since the choice between descriptive and interpretative models requires a circular justification, legal theory is itself an activity governed by epistemic values interpretation. Likewise natural sciences, it can only be understood from an internal perspective. Accordingly, inclusive positivism holds the advantage of being more consilient than interpretivism, which is arguably parochial

Global constitutionalism and legal theory: a preliminary analysis

El derecho supranacional presenta fenómenos de fragmentación, además de aspectos de constitucionalización. Las teorías que se ocupan del constitucionalismo global analizan los fenómenos de constitucionalización del derecho supranacional, tal como los requisitos prescriptivos de este proceso. Este artículo versa sobre las diversas maneras en las que es posible comprender el constitucionalismo global y, sobre todo, analiza su relevancia para la teoría y el concepto de derecho.Supranational law shows phenomena of fragmentation, as well as aspects of constitutionalization. Theories that deal with global constitutionalism analyze phenomena of constitutionalization of supranational law, as well as the prescriptive requirements of this process. This paper analyzes the different ways in which it is possible to understand global constitutionalism, and in a preliminary way addresses its relevance to the theory and the concept of law

On two paradigms of legal theory and their relationship

H. L. A. Hart thought that a theory of law can be purely descriptive and called his theory a “descriptive sociology”. One of his great contributions to modern legal theory is his emphasis on the internal aspect of social rules. According to him, a theory of law can be built on the basis of the description of the participants’ view without sharing with it. This descriptivism is totally rejected by Dworkin, who propagates a theory that denies a sharp separation between a legal theory and its implications for adjudication. For Dworkin, a legal theory is only possible as a theory with “the internal, participants’ point of view”. Dworkin’s position implies a radicalization of legal theory that will transform the statement of an external point of view to that of an internal one. For Dworkin, the descriptivism bases on the sociological concept of law, which is an “imprecise criterial concept” and is “not sufficiently precise to yield philosophically interesting essential features.”Hart’s position is vulnerable because it takes an impure form of descriptivism that still draws a categorical distinction between fact and norm. This theoretical impurity results from the ambiguity of interpreting the internal aspect of rules. A strategy to rescue the Hart’s project is to radicalize his descriptivism with Luhmann's systems theory. Adapting the systems theoretical distinction between internal and external observation of law with all its implications for the explanation of the legal system and legal communications, Hart’s descriptivism finally attains its pure form, which is not only a distinctive paradigm of legal theory, but also possesses the potentialities to clarify its relationship to the legal theory based on the internal aspect of law

Rights, Performatives, and Promises in Karl Olivecrona’s Legal Theory

Karl Olivecrona (1971) maintains that right is a hollow word, and so also for some other legal terms. Right, he says, has no conceptual background. He arrives at this position after an examination of metaphysical and naturalistic accounts, including American legal realism. Some of Olivecrona\u27s arguments will be evaluated here. His position is influenced by Hagerstrom\u27s theory of legal language, but he argues that Hagerstrom fails to account for how such terms as right, duty, etc. function in legal discourse and why they are useful. A parallel approach is also found in Olivecrona\u27s book The Problem of the Monetary Unit (1957). Olivecrona is left with the problem of how such hollow terms function. His explanation is largely psychological. Going beyond J. L. Austin\u27s notion of performatory language, he introduces the idea of performatory imperatives. I propose to submit Olivecrona\u27s approach to a critical examination. It is suggested that had he started from everyday, nonlegal promises and commitments he might well have ended up with a different theory of legal language

Mapping Legal Theory

In this essay, the author briefly outlines recent trends in Canadian jurisprudence. Beginning with a brief overview of the classical jurisprudential debate between natural lawyers, legal positivists, and legal realists, the author then provides an introduction to a new theoretical tradition which he terms Artifactualism , as well as a survey of contemporary \u27\u27Artifactualist Jurisprudence . He argues that there has been a significant theoretical shift away from the classical conceptualization of law as morality (as embodied in natural law, and challenged by legal posltlvism and legal realism), toward the conceptualization of law as politics (as promulgated by artifactualism). This new conceptualization of law is the terrain of struggle over the meaning and quality of social existence has informed the works of Artifactualist jurisprudents in the areas of Liberalism, Marxism, Feminism, First Nations and Critical Legal Studies, and serves to elucidate some of the tensions in the Canadian Charter of Rights and Freedoms