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Law in Theory and History: New Essays on a Neglected Dialogue edited by Maksymilian Del Mar and Michael Lobban*

Published online by Cambridge University Press:  08 February 2019

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Extract

This volume is an important contribution to a topic which has seen something of a resurgence lately and one from which both legal theorists and legal historians will greatly benefit. Some of the essays in this volume tackle questions on the ground floor, as it were, of interactions between legal theory and legal history. Others offer metatheoretical reflections on legal theory and legal history. Some combine the two. Given that the essays offer a rich variety of perspectives and do not unfold according to a master plan, it would be ill advised for a reviewer to impose an artificial order on them to be able to discuss the whole in one go. Instead, the discussion in this review will revolve primarily around some key themes revolving around the method and aims of legal theory.

Type
Book Review
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2019 

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Footnotes

*

Maksymilian Del Mar & Michael Lobban, eds, Law in Theory and History: New Essays on a Neglected Dialogue (Oxford: Hart, 2016) pp. xiv +347. Numbers in text are to the book.

References

1. Simpson, AW Brian, Reflections on the Concept of Law (Oxford University Press, 2011) at 21.CrossRefGoogle Scholar

2. See Duxbury, Neil, Frederick Pollock and the English Juristic Tradition (Oxford University Press, 2004) at 49.CrossRefGoogle Scholar

3. Martin, Heidegger, Being and Time, translated by Macquarrie, John & Robinson, Edward (Harper & Row, 1962) at 29.Google Scholar

4. Ibid at 30.

5. Hart, HLA, The Concept of Law, 2nd ed by Bulloch, Penelope A & Raz, Joseph (Oxford University Press, 1994) at vi [parenthesis added].Google Scholar

6. Ibid at 80.

7. See Brian Leiter, “The Demarcation Problem in Jurisprudence: A New Case for Scepticism” (2011) 31:4 Oxford J Legal Stud 663.

8. See Leslie Green, “The Concept of Law Revisited” (1996) 94:6 Mich L Rev 1687 at 1692 Hart does make apparently contrary remarks in the posthumously published Postscript: Hart, supra note 5 at 239-40.

9. Schauer, Frederick, “On the Nature of the Nature of Law” (2012) 98:4 Archiv für Rechts- und Sozialphilosophie 457 (advocating ‘cluster concepts’).Google Scholar

10. Finnis, John, Natural Law and Natural Rights, 2nd ed (Oxford University Press, 2011) at 9-11.Google Scholar

11. See, e.g., Joseph Raz, “On the Nature of Law” (1994) and “Can there be a Theory of Law?” (2004) republished in Joseph Raz, Between Authority and Interpretation (Oxford University Press, 2009) at 91-125 and 17-46 respectively.

12. Brian H Bix, “Raz on Necessity” (2003) 22 Law & Phil 537 at 538.

13. See David Ibbetson, A Historical Introduction to the Law of Obligations (Oxford University Press, 1999) at 221.

14. See Bix, Brian H, Contract Law: Rules, Theory, and Context (Cambridge University Press, 2012) at 147-48.CrossRefGoogle Scholar

15. See Shivprasad Swaminathan, “Mos Geometricus and the Common Law Mind: Interrogating Contract Theory” (2019) 82:1 Mod L Rev [forthcoming].

16. HLA Hart, “The Ascription of Responsibility and Rights” (1949) 49 Proceedings of the Aristotelian Society 171 at 176.