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Books > Law > Jurisprudence & general issues > Jurisprudence & philosophy of law
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Our Knowledge of the Law - Objectivity and Practice in Legal Theory (Hardcover, New)
Loot Price: R3,386
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Our Knowledge of the Law - Objectivity and Practice in Legal Theory (Hardcover, New)
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In the long-standing debate between positivism and non-positivism,
legal validity has always been a subject of controversy. While
positivists deny that moral values play any role in the
determination of legal validity, non-positivists affirm the
opposite thesis. In departing from this narrow point of view, the
book focuses on the notion of legal knowledge. Apart from what one
takes to constitute the grounds of legal validity, there is a more
fundamental issue about cognitive validity: how do we acquire
knowledge of whatever is assumed to constitute the elements of
legal validity? When the question is posed in this form a
fundamental shift takes place. Given that knowledge is a
philosophical concept, for anything to constitute an adequate
ground for legal validity it must satisfy the standards set by
knowledge. In exploring those standards the author argues that
knowledge is the outcome of an activity of judging, which is
constrained by reasons (reflexive). While these reasons may vary
with the domain of judging, the reflexive structure of the practice
of judging imposes certain constraints on what can constitute a
reason for judging. Amongst these constraints are found not only
general metaphysical limitations but also the fundamental principle
that one with the capacity to judge is autonomous or, in other
words, capable of determining the reasons that form the basis of
action. One sees, as soon as autonomy has been introduced into the
parameters of knowledge, that law is necessarily connected with
every other practical domain. The author shows, in the end, that
the issue of knowledge is orthogonal to questions about the
inclusion or exclusion of morality, for what really matters is
whether the putative grounds of legal validity are appropriate to
the generation of knowledge. The outcome is far more integral than
much work in current theory: neither an absolute deference to
either universal moral standards or practice-independent values nor
a complete adherence to conventionality and institutional
arrangements will do. In suggesting that the current positivism
versus non-positivism debate, when it comes to determining law's
nature, misses the crux of the matter, the book aims to provoke a
fertile new debate in legal theory. "George Pavlakos' engaging book
tackles the fundamental question of what makes legal knowledge
possible. Since all articulate thought has to conform to implicit
rules of grammar, it is necessarily normatively structured. Thus
normativity cannot be something external to human thinking that we
study from the outside, but is intrinsic to all human practices
(including the natural sciences). This insight opens up fascinating
new lines of inquiry into the character of law and its relations to
other normative domains." Professor Sir Neil MacCormick, Edinburgh
University "With admirable analytical acumen, George Pavlakos
underscores the practical character of legal knowledge as well as
the importance of argumentation in legal theory. He rejects those
approaches to the nature of law that rest on conventional criteria
as well as those that turn on factors altogether independent of
practice, developing instead the thesis that objectivity and
knowledge emerge from practical activity reflecting the spontaneity
of human reason. In light of this notion of legal cognition as a
practical activity directed and constrained by reason, the law is
seen as an enduring institution, jurisprudence as a humanistic
discipline. A truly important work." Professor Dr. Robert Alexy,
Christian-Albrechts-Universitat zu Kiel
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