an interdisciplinary conceptual orientation
for the study of law
Alan Cameron's abstract, intro and outline (recent) to his forthcoming book. With some opening comments by Albert Gedraitis (May26,2k9)
Based at the School of Accounting and Commercial Law, under the Faculty of Commerce and Administration, Victoria University of Wellington in Wellington, New Zealand, Senior Lecturer Cameron locates his academic speciality in commercial law.
Perhaps even more importantly to many of us reformationals around the world, Cameron functions actively as a leading Juridical scholar, a professional in juridics who "reflects on the nature of law in relation to the distinctives of the New Zealand legal tradition and the wider legal developments around the world."
He is "a critical proponent of the Juridical philosophy developed by past professor of law at the Free University in Amsterdam, the Netherlands, Dr Herman Dooyeweerd." Cameron, in his forthcoming book Integrative Jurisprudence, presents a path-breaking, creative reading of a famous Dutch scholar's philosophy of law, as mentioned, a philosophy that is transforming itself into an international philosophy of law now invigorated by finely detailed study of the exemplary legal system of New Zealand -- where common law necessarily includes both the main public jurisprudence and the large-indigenous population's own rules-wisdom, the latter both in the oral tradition of the Maori people, and nowadays sometimes written down. The two systems necessarily have collided at times, but both systems must interact and learn from their mistakes along the way. [I've taken much of the foregoing material from the Wikipedia entry, Alan Cameron (legal scholar)."]
Cameron is well-acquainted with his mentor's Encyclopedia of the Science of Law [Volume I (English translation 2003, Mellen Press; Dutch original, Encyclopaedie der Rechtswetenschap (Studentenraad, Vrije Universiteit, Amsterdam, 1946-1967).)] Encyclopedia I has been published in English now for 6 years. Further, Cameron has worked at studying the full shelf of remaining volumes (5 in total), accessing partial translations as the forward-work proceeds by a team headed by philosopher and Dooyeweerd specialist, Dr Danie Strauss.
In Cameron's forthcoming study of Dooyeweerd's law philosophy, the law scholar purposely thinks thru his own country's legal system in all its uniqueness (difference and sameness) in relation to the other states and conditions of the world to which New Zealand must relate; in the course of which he sets up a dynamic relation between D's thawt, C's own contributions where, besides appropriating ins+ts, he may go even beyond his mentor with many new juridical ins+ts, and he does all this in in building his multidimensional understanding of his country and its legal system.
Readers may also want to hunt down as a kind of sampler, Cameron's recent paper, "Dooyeweerd on Law and Morality: Legal ethics -- a test case" (available in .PDF format for digital download).
INTEGRATIVE JURISPRUDENCE:
AN INTERDISCIPLINARY CONCEPTUAL ORIENTATION FOR THE STUDY OF LAW
by Alan Cameron
Abstract
The book is an exposition of the jurisprudential perspective set forth in the Encyclopaedie der Rechtwetenschap (Encyclopedia of the Science of Law), a multi-volume jurisprudential conceptual framework and method developed by the late Professor Herman Dooyeweerd (1894-1977). It is found in dictaten (typed and bound notes) produced by the Student Council at the Free University of Amsterdam for his students during his tenure of the Chair in Jurisprudence and Old Dutch Law in the Faculty of Law at the Free University of Amsterdam from 1926 until 1964). The Encyclopaedie was itself a particular application of an original general philosophical system (Philosophy of the Cosmonomic Idea) that emerged from Dooyeweerd’s initial wrestling with neo-Kantian legal theory. Its maturest expression was published in English as A New Critique of Theoretical Thought.
This application of the encyclopaedic method in this book contains some revisions and refinements of Dooyeweerd’s philosophical categories and method. These are largely attributable to developments introduced by Prof. DFM Strauss to whom I owe a debt of gratitude in developing my own understanding of Dooyeweerd’s general philosophy and his philosophy of law. Only the introductory part of Dooyeweerd’s major jurisprudential work has appeared in English to date, Encyclopedia of the Science of Law: Introduction (Mellen 2002), the first of four substantial volumes to be published in English. This exposition however, draws heavily on the substantive parts of the Encyclopedia contained in the unpublished volumes.
The integrative jurisprudence and it method arises out of a critique of the main traditions of Western philosophy general, legal philosophy and its roots. It rests upon a particular account of the nature of theory and theorizing in relation to its subject matter. Applied to the field of legal study it results in an original legal epistemology (theory of legal knowledge) and ontology (theory of legal phenomena).
This main focus of this book is upon the ontology in order to achieve its chief aim of providing a conceptual orientation for the study of law. Unlike other jurisprudence texts it is not intended to be merely an introduction to different theories of law and/or to a few selected traditional topics involving debates amongst contending perspectives, that is, an introduction to jurisprudence as a distinct subject of legal theory within the legal curriculum. More ambitiously, it is intended to present a view of jurisprudence as a more or less comprehensive conceptual framework for the special academic discipline of law. For that reason it will devote less attention than other jurisprudential works to the detailed examination of different legal philosophies.
Briefly stated, the integrative perspective as an ontology of law comprises three central elements: the modal or aspectual, the entitary or typical-structural and the “enkaptic” or structurally interconnecting element. However, the most original and fundamental element is that of the theory of modal aspects. A key idea in this legal philosophy is that of the jural aspect as one of a diversity of irreducible but interconnected universal aspects of social reality.
Grounded in a cosmic law theory this theory of law, understandably, is prone to be categorised within the natural law tradition of legal philosophy. However, it will be seen that there are important features of this perspective that bear a strong similarity to, or are shared in common with, key features of other traditional (e.g. analytical legal positivism) and more recent movements or schools of legal philosophy including critical legal theories, law and economics and, especially in its underlying critique of Enlightenment rationalism, postmodern legal thought, central elements of which had already been anticipated in Dooyeweerd’s philosophical critique.
Finally, an auxilliary, but nonetheless important feature of this work, is the conscious attempt by the author to utilise, though not exclusively, a wide range of New Zealand scholarly legal material – sources of law, legal doctrine and theory - to both illustrate and explicate the concepts and method employed. In this way it is hoped to give increased relevance to the exposition of the theoretical concepts for the New Zealand student; contribute towards a distinctively New Zealand jurisprudence in both the theoretical and non-theoretical senses of jurisprudence explained in the first section of the introductory chapter; and further the existing inter-disciplinary and intra-disciplinary dialogue amongst New Zealand legal and non-legal scholars. Though there is a conscious New Zealand bias in the illustrative material this should only be regarded as localised application of an approach that thinks globally as befits a true philosophy of law. This work is intended to demonstrate the possibility of its application within the common law tradition by way of illustration within the local jurisdiction. The last section which includes a discussion of international law should help to deflect criticism of parochialism in the illustrative legal subject matter.
Part One: Introduction
Chapter 1: An Overview
Nature, role and function of jurisprudence
Within the study of law jurisprudence is a term that can be used with different though related meanings. When legal scholars refer to the jurisprudence of the Treaty of Waitangi they are referring to the actual law itself as well as the “wisdom” it contains, jurisprudence in its literal meaning (legal wisdom). Jurisprudence in this sense includes the learning, principles, concepts and doctrines contained within the formal legal sources of court decisions and legislation. It may also encompass learned scholarly commentary or treatises on the law itself. However jurisprudence, taught as a distinct subject within the law curriculum, has a narrower meaning that refers to theory of law. It encompasses, both general philosophy of law as found in the history of the ideas of leading thinkers, as well as more narrowly focused theories of specific areas of law such as tort, contract, public law etc. and the concepts associated with those branches of law.
I will discuss, in this chapter subsection, debates about the place of jurisprudence in the law curriculum: – should it be compulsory? should it be in a separate course? Or should it be an essential element of all law courses? This serves as a lead-in to 1.2 where I set forth the “integrative” view of the role of jurisprudence within the study of law generally
1.2 Relation of jurisprudence to discipline of law and legal phenomena:
Neil MacCormick’s Four Quadrants of Jurisprudence will be taken as example of a view of jurisprudence in its relation to the discipline law to which the integrative approach is compared.
1.3 Some key features of integrative jurisprudence
This will include comparison with features of other perspectives: interdisciplinary grounded in the coherence of reality and our experience of it “transcendental-empirical”a descriptive-normative/analytical theory oriented to fit an empirical normative jural reality that nonetheless exceeds (transcends) the ability of analytical/theoretical concepts to fully capture pluralist rejects “mono-legal”/positivist theories of law and identifies a rich plurality of expressions of the jural dimension in diverse societal spheres reflected in a socio-structural taxonomy of law normative coherence the interconnection of concepts expresses the inner coherence of the jural dimension of social experience in its plural expressions
open is open to revision within and outside of its perspective to engage in dialogue with other perspectives critical solidarity acknowledges commonalities with, and contributions of, other theories from different perspectives without abandoning its own standpoint commitment-explicit exposure of root beliefs underlying the theory – the failure of other theories to identify their own root beliefs is a self-critical deficit in those theories
PART TWO: AN INTEGRATIVE VIEW OF LAW
Chapter 2: Law, Discipline of Law, Legal Theory and its Roots
2.1 What is law?
Distinguish this descriptive/analytical (theoretical) question from a related theoretical question: What is a law? and from the question for the practitioner/scholar-doctrinalist/student of law: What is the law? Is this latter “practical” question connected to the former theoretical questions? If so, how? This section does not answer these questions so much as discuss what sort of questions they are in the context of the study of law and how they interrelate. This section therefore only provides preliminary intimations of the answers to the questions that are elaborated more fully by the integrative approach in the following sections and chapters.
2.2 What is the discipline (study) of law?
2.3 What is the role of theory in the study of law? Philosophy and the academic disciplines
2.4 The reason-transcending roots of philosophical perspectives in disciplinary theories – legal theory in particular
Chapter 3: Outline of An Integrative Conceptual Perspective on Law
3.1 Basic Jural concepts: the modal dimension of law
3.1.1 Basic jural concepts: elementary
3.1.2 Basic jural concepts: complex
3.1.3 The concept of law
3.2 Basic cosmic relations expressed in the jural aspect of reality
3.2.1 Universal side and individual side
3.2.2 Norm side and fact side
3.2.3 Subject-object relation
3.2.4 Origination-duration-termination
3.3 Jural ideas
3.3.1 Jural concept and jural idea: the concept of law and the idea of justice
3.3.2 Jural morality
3.3.3 Justice as a jural-moral idea
3.4 Jural entity-type concepts: jural entities and their inter-connections
3.4.1 The diversity of human (jural) type-structures
3.4.2 Basic (modal) concepts and entity-type concepts: the role of the sociology of law
3.4.3 Jural form and substance: originating forms of law and their material sources
3.4.4 The interweaving of laws having differing material sources
3.4.5 The private-public distinction in the light of jural entity-type concepts:
3.5.1 The interweaving of private and public law
Part Three: Applications of the Integrative Perspective
Chapter 4: Contract and Contract Law: Two Jural Realities
4.1 Contract distinguished from contract law
4.2 Doctrines of contract formation and their conundra
4.3 Private and public law of contract
Chapter 5: Indigenous Law: Legal Pluralism and the Role of Cultural-Historical Differentiation
Chapter 6: The University: Interconnected Jural Plurality
Part Four: Jurisprudential Challenges
Chapter 7: Law and Justice in a Global Perspective: International Law
Chapter 8: - Know Yourself: Law’s Need of an Integrated Theory of the Human Person
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