Christoph Bezemek - Vienna Lectures on Legal Philosophy, Volume 1

VIENNA LECTURES ON LEGAL PHILOSOPHY, VOLUME 1:
LEGAL POSITIVISM, INSTITUTIONALISM
AND GLOBALISATION

The first volume of the Vienna Lectures on Legal Philosophy illustrates the remarkable scope of contemporary legal philosophy. It introduces methodological questions rooted in national academic discourses, discusses the origin of legal systems, and contrasts constitutionalist and monist approaches to the rule of law with the institutionalist approach most prominently and vigorously defended by Carl Schmitt. The issue at the core of these topics is which of these perspectives is more plausible in an age defined both by a postnational constellation and the re-emergence of nationalist tendencies; an age in which the law increasingly cancels out borders only to see new frontiers erected.

Vienna Lectures on Legal
Philosophy, Volume 1

Legal Positivism,
Institutionalism and Globalisation

Edited by

Christoph Bezemek, Michael Potacs
and Alexander Somek

HART PUBLISHING

Bloomsbury Publishing Plc

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First published in Great Britain 2018

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Library of Congress Cataloging-in-Publication data

Names: Bezemek, Christoph, editor. | Potacs, Michael, editor. |
Somek, Alexander, editor.

Title: Vienna lectures on legal philosophy / Edited by Christoph Bezemek,
Michael Potacs and Alexander Somek.

Description: Portland, Oregon : Hart Publishing, 2018. |
Includes bibliographical references and index.

Identifiers: LCCN 2018005368 (print) | LCCN 2018005869 (ebook) |
ISBN 9781509921720 (Epub) | ISBN 9781509921713 (hardback : alk. paper)

Subjects: LCSH: LawPhilosophy. | LawMethodology.

Classification: LCC K212 (ebook) | LCC K212 .V54 2018 (print) | DDC 340/.1dc23

LC record available at https://lccn.loc.gov/2018005368

ISBN:HB:978-1-50992-171-3

ePDF:978-1-50992-173-7

ePub:978-1-50992-172-0

Typeset by Compuscript Ltd, Shannon

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Vienna, it is sometimes stated, is a city looking ahead into a glorious past. Sadly, this observation appears to be particularly apt with regard to the situation of legal philosophy. Vienna has a rich and long tradition in legal philosophy, a tradition which dates back to eighteenth-century natural law theory. Specifically, of course, the place has become famous for the Viennese School of legal positivism, with Hans Kelsen as its most outstanding proponent.

This Viennese School stands for positivism with a critical edge (in this respect perhaps matched only by Bentham). Borrowing Holmess often-cited image, it washes received legal concepts in cynical acid. In a Weberian vein, it can be said to create a disenchanted image of the legal system. With regard to its critical thrust, it is topped possibly only by radical versions of legal realism and critical legal studies.

Nevertheless, reality may have lost much of its bite. It often seems that the teachings of the Viennese School have become too readily accepted at home while at the same time being too readily rejected abroad. Such a state of affairs, however, entails the danger that the Viennese discourse becomes more and more secluded. Debates that take place in complacent (albeit splendid) isolation are shielded from outside challenges but are also incapable of exerting relevant influence outside of the circle of faithful followers.

To avert this danger, the Vienna Lectures on Legal Philosophy intend to put Vienna back on the map of legal philosophy, by reintroducing the city as a node in international debates.

This can only be achieved by recognising that the Viennese School of legal positivism is merely one particularly remarkable outgrowth of the much broader and older tradition of jurisprudence.

It is this broader background that explains why continental legal theory, but also legal philosophy, entertains a much closer relation to doctrinal legal analysis: in stark contrast to the non-inference policy that has become the standard attitude in some Anglo-American circles, continental legal theory wishes to have something to say to doctrinal analysis.

At the same time, continental legal philosophy is occasionally easily infatuated with speculative idioms and fancy vocabularies (an accusation German legal philosophy has to face regularly). Therefore, it is not infrequently met with widespread scepticism in the Anglo-American world.

The Vienna lecture series is based upon the firm conviction that continental jurisprudence benefits immensely from making itself explicable to Anglo-American circles. Legal theory and legal philosophy of our time must attempt to bridge the gap between these two long-standing traditions.

Today, we are confronted with a great variety of approaches to legal theory and legal philosophy, ranging from hermeneutics, postmodernism and post-positivist approaches to social systems theory. It is the advantage of Vienna that almost without exception all existing contemporary work can be related to the Viennese School and be understood as an attempt to overcome its shortcomings. This can be claimed for institutionalism, first developed by Carl Schmitt as an alternative to Kelsenian normativism and later reformulated by Neil MacCormick, for Gunther Teubners inversion of the laws hierarchical structure and for Ronald Dworkins right answer thesis.

Against that backdrop, we would like the Vienna lecture series to serve as a platform that counteracts the various tribalisms of contemporary legal theory. Each school or approach, quite naturally, has its own fora and preferred journals, with a respective in-group bias. We, however, would like the Vienna lecture series to become the publication that people consult in order to see what is going on in legal theory in general.

If we succeed in that, we may be able to renew a conversation that stopped around the time when Roscoe Pound and Lon Fuller dropped their last footnotes to Jhering or Eugen Ehrlich. This would be no small accomplishment.