Andrew Halpin

Fundamental Legal Conceptions Reconsidered

Fundamental legal conceptions are considered in relation to the analytical concerns of Hohfeld and Bentham, and also the normative concerns of constitutional and common law protection of rights and liberties. The use of a square of opposition to expound fundamental conceptions is rejected in favour of a triangle of possibilities. It is argued that this device helps to provide a clearer understanding of which conceptions may appropriately be recognised as analytically fundamental, and in turn avoids confusion over the normative treatment of practical situations that may arise through the designation of legal rights and liberties as fundamental.

The Theoretical Controversy Concerning Judicial Review

Review Article. Book reviewed in this article: Christopher Forsyth (ed), Judicial Review and the Constitution.

Concepts, Terms, and Fields of Enquiry

This article considers the role of conceptual analysis in jurisprudence. In responding to the earlier article of Brian Bix, Conceptual Questions and Jurisprudence , 1 Legal Theory 465 (1995), it is agreed that the purpose of the theorist must be identified in order to evaluate the merits of the practice of conceptual analysis, but the approach taken here differs from that proposed by Bix. In particular, it is suggested that Bix is wrong to limit stipulation within conceptual analysis to a default option, and Bixs suggestion that jurisprudential analysis lacks an empirical basis is challenged. The approach developed in this article relies on a clarification of the relationships among terms, concepts, and fields of enquiry. It explores the different relationships that can exist between concepts. Seven general principles of the practice of conceptual analysis are expounded, and the proper scope of an evaluative element within conceptual analysis is considered. A final section briefly examines some of the wider implications of the approach to conceptual analysis proposed in the article.

Ideology and Law

A variety of theoretical perspectives on law are surveyed for their attitudes towards ideology. In addition to political ideology, the possibility is considered of recognising a ‘guild ideology’ among lawyers, or other forms of an internal legal ideology. Efforts to extend the explanatory power of ideology through the devices of totalizing ideology and reflexive ideology are rejected as unfounded. The potential illumination provided by ideology to understanding the practice of law is located in a ‘prevalent’ notion of ideology premised on enduring conflict between opposing political outlooks, rather than a ‘pure’ notion of ideology used to express the conceptual branch of political science. Within this setting there remains a distinctive job for law to perform in dealing with the conflicting demands of unfinished ideologies, and a place for ideology in working through the unfinished business of the law.

Hohfeld's Conceptions: From Eight to Two

If Jurisprudence strikes the law student as a miry bog, the analysis of a legal right ought, at least, to provide a path through the marshland. The disparate rumours of such a path may have a greater tendency to lead him into the middle of the bog than bring him safely to the other side.

Rights, Duties, Liabilities, and Hohfeld

This essay engages with Jaffeys recent contribution to Legal Theory on the nature of no-prior-duty remedial obligations. Jaffeys use of a right-liability relation and his challenge to Hohfelds analytical scheme are rejected as unsound. An alternative model distinguishing three pathways to account for remedial obligations and other legal consequences is proposed. This draws on the Hohfeldian scheme but extends it to permit the full expression of reflexive liabilities, mutually correlative liabilities, and the operation of non-human conditions. The proposed approach also recognises a weaker form of a Hohfeldian power, which is required in considering the way that the law deals with the allocation and realisation of risk. It is mentioned in passing that the analytical discussion within the essay may have implications for the law of tort, restitution, and how particular conceptions of property are established in society.

AUSTIN'S METHODOLOGY? HIS BEQUEST TO JURISPRUDENCE

This essay explores the disengaged state of contemporary legal theory and John Austin’s contribution to the foundation of modern jurisprudence, seeking to demonstrate the intimate connection between the two themes. The common view that Austin is responsible for a distinctive methodology of analytical jurisprudence is challenged. Instead, through a general consideration of theoretical contestability and disagreement, the investigation is focused on the particular manner in which Austin sought to establish the province of jurisprudence. This reveals an exclusivity in Austin’s field of inquiry that precludes potentially beneficial engagement with theoretical rivals, revolving around Austin’s central insight on the distinction betweeen the existence of law and law’s merit. His insight is critically reassessed in order to offer a fresh perspective on the role of legal reasoning and the nature of the is/ought divide within a general theory of law. Other aspects of Austin’s thinking are regarded as an overlooked inspiration for a fundamentally different direction for legal theory. This would encompass greater engagement between legal theorists themselves; would offer opportunity for engagement with other prospective stakeholders in legal theory; and position legal theory to deal with new forms of global legal phenomena.

Law, Autonomy, and Reason

Joseph Raz’s recent discussion of law’s autonomy and public practical reasons, in response to an essay by Gerald Postema, provides further illumination of Raz’s own view of the nature of law; it forcefully challenges Postema’s purported identification of the defining task of law; and it clarifies the relationships between a number of strands, or theses, that enter the debate over an appropriate theoretical model for law. It is not necessary to locate this discussion within the more general setting of the conflict between Natural Law and Positivism—nor is it in any case clear that that sharp contrast is sustainable. Within the traditionally accentuated divide between Natural Law and Positivism, to talk of the autonomy of law would be taken as a simple positivist proclamation against the subjugation of law to moral standards. What emerges from Raz’s article is a subtle interplay between different characteristics and expressions of the law, which is capable of entertaining moral influence and social objective whilst retaining clear theses that seek to capture the distinctively legal nature of the phenomenon under investigation. In Raz’s recent article, the distinctive nature of law is still linked to an idea of autonomy expounded in terms of the sources thesis and the pre-emption thesis. The former identifies legal materials with legal sources free from the constraints of a further evaluative check, and the latter provides legal reasons to act for those subject to the law free from the consideration of further extra-legal factors. The greater sophistication of this concept of autonomy rests on the allowance Raz gives to the impact of moral factors and issues of social cooperation on legal reasoning , and his acknowledgment that legal reasoning itself is not autonomous.

Law, theory and practice: Conflicting perspectives?

Stanley Fish’s view that theory can be `̀ made to disappear in the solvent of an enriched notion of practice’ ’ (Fish, 1989, p. ix), which is expounded in a number of essays in his book Doing What Comes Naturally, is a particularly illuminating starting point for this article. Fish’s view compresses the fundamental issues with which I shall be dealing: the nature of practice; the nature of theory; and the relationship between the two. It is a view that is argued for with great subtlety and ̄ air. Challenging its underlying elements will, I think, not simply undo the Fish view, but also release greater understanding on these fundamental issues. Fish (1989) illustrates his view with the tale of the taciturn baseball player, Dennis Martinez. Martinez rebukes the eager journalist sensing a scoop when spotting an exchange between Martinez and his coach before a game. To the journalist’s request for details of the exchange, Martinez simply informs him: `̀ He said, `Throw strikes and keep ’em oþ the bases’ , . . . and I said, `OK.’ What else could I say? What else could he say?’ ’ (Fish, 1989, p. 372). Simply put, Fish’s position is that all he wants from his baseball players is to know how to do it and to get on with it: `̀ Throw strikes and keep ’em oþ the bases’ ’ . And there is nothing more that anyone can say. By the end of chapter 17, Fish is making the same point for statesmen and judges. Promoting the philosopher king, the philosopher judge or the philosopher baseball player is all put down to the territorial ambition of philosophers, and it does not help one bit. So what we want is people with the right practical skills. Yet within this enriched notion of practice there is room for `theory-talk’ :

New Rights for Old

The objective of this article is very limited, but if realised, I believe it has far-reaching implications. I want to examine the narrow topic of Ungers approach to rights. In exploring this objective I shall not be concerned with considering Ungers general approach to law, or with other aspects of his legal theory. Nor shall I question the assumptions that Unger may be making about the human condition or the nature of the world in which we live. Ignoring these wider concerns, my objective is to demonstrate that the new rights of Ungers deviationist doctrine in fact embody the old rights of legal formalism that their author has purported to abandon. The implications are twofold. First, for Ungers general enterprise: if it turns out that there is nothing new in his radical showpiece of rights, then some aspersions must be cast on the claims of novelty and radical efficacy made for “the program of empowered democracy” in which this showpiece is set.