References
- SeeHusserl, Edmund, Logical Investigations II. Trans, by J.N. Findlay. London, Routledge & Kegan Paul, 1970.
- Husserl, Edmund, Formal and Transcendental Logic. Trans, by D. Cairns. The Hague, Nijhoff, 1969.
- Ibid., pp. 163–4.
- Ibid., p. 166.
- Logical Investigations II, p. 677.
- Husserl, Edmund, Cartesian Meditations: an Introduction to Phenomenology. Trans, by D. Cairns. The Hague, Martinus Nijhoff, 1960. p. 106.
- Ibid., p. 62.
- Ibid., p. 84.
- Husserl, Edmund, The Crisis of European Sciences and Transcendental Phenomenology. Evanston, Northwestern U.p., 1970, p. 113.
- Ibid.
- Ibid., p. 31.
- Berger, Gaston, The Cogito in Husserl's Philosophy. Trans, by K. McLaughlin. Evanston, Northwestern U.p., 1972. p. 88. See also Landgrebe, Ludwig, “The World as a Phenomenological Problem” (1930) Philosophy and Phenomenological Research, Vol. 1, Sept. 1940–June 1941, pp. 38–58.
- Husserl, Edmund, Cartesian Meditations: An Introduction to Phenomenology. Trans, by D. Caims. The Hague, Martinus Nijhoff, 1960, p. 107.
- Ibid.
- Op. cit., p. 139.
- The Trustees of Dartmouth College v Woodward 17 US 508; 4 Wheaton 514.
- “Jurisgenesis”, as the constitution of, and commitment to, legal meaning by and within the relevant interpretive community, is the word used by Cover, Robert, Nomos and Narrative”, (1983) 37 Harvard Law Review, 4.
- As when one jurisdiction, forum, rule, principle or form of law (see e.g. Weber's types of rationality in note below), claims superiority and competence over another, opposing one.
- Weber, M., Law in Economy and Society, op. cit. Ch. VIII, for example, identified four ideal types of legal systems along axes of formality and rationality: formal rationality, formal irrationality, substantive rationality and substantive irrationality. Rationality referred to the system's capacity to formulate universal rules and apply them to like cases measuring generality and universality. Formality referred to the employment of criteria intrinsic to the system measuring autonomy. Substance indicated employment of criteria extrinsic to the system. Each type thus embodies its specific mode of constituting legal meaning, its specific definition of reason or rationality and thus of law, and thereby produces the form of justice specific to it. See also Trubek, David, “Max Weber on Law and the Rise of Capitalism” (1972) Wisconsin Law Review 720.
- See e.g. for a recent collection. Amselek, p., and MacCormick, Neil, eds., Controversies about Law's Ontology. Edinburgh, U.p., 1991. This contains accounts of natural law, institutionalist, structuralist, autopoietic, and voluntarist theories of law.
- Heidegger, Martin, What is a Thing? Trans, by W.B. Barton, Jr. and V. Deutsch. New York, Lanham, 1967. p. 177.
- Husserl, Edmund, “Kant and the Idea of Transcendental Philosophy”, p. 40. Southwestern Journal of Philosophy. Vol. V. No.3. Autumn 1974. pp. 9–57.
- Husserl, Edmund, “Philosophy as a Rigorous Science” in Husserl, Edmund, Phenomenology and the Crisis of Philosophy. New York, Harper & Row, 1965. p. 102.
- See e.g. the sociological movement in law and social and anthropological theories of law which adopt the methodology of the behavioural sciences. Hoebel, E. Adamson, The Law of Primative Man: A Study in Comparative Legal Dynamics, Cambridge, Mass., Harvard U.p., 1964, states: “An anthropological approach to law is flatly behaviorist and empirical in that we understand all human law to reside in human behavior and to be discernable through objective and accurate observation of what men do in relation to each other…” p. 5. “The basic problem confronting the creators of all law systems is one of selection, what lines of behavior is the law to support, and what…to be suppressed?” pp. 12–13. See also Hunt, Alan, The Sociological Movement in Law, Macmillan, 1978; Podgorecki, A. and Wehlan, C.J., eds. Sociological Approaches to Law, London, Croom Helm, 1981; Reasons, C.E. and Rich, R.M., eds., The Sociology of Law: A Conflict Perspective, Toronto, Butterworths, 1978; Pound, Roscoe, Interpretations of Legal History, Gloucester, Mass, Peter Smith, 1967 reprint of 1923. Pound, Roscoe, The Spirit of the Common Law, Boston, Beacon p., 1921; Llewelyn, K.N., The Bramble Bush, New York, Oceana, Dobbs Ferry 1930; Llewelyn, K.N., “Law and the Social Sciences—Especially Sociology”. (1949) 62 Harvard Law Review, 1286.
- See e.g.Austin, John, The Province of Jurisprudence Determined. London, Weidenfeld and Nicholson, 1955, for a positivist definition of law: “Laws proper, or properly so called, are commands; laws which are not commands, are laws improper or improperly so called. Laws properly so called, with laws improperly so called, may be aptly divided into four…” p. 1. The sovereign is the sole source of law.
- Hobbes, Thomas, A Dialogue Between a Philosopher and a Student of the Common Laws of England. Chicago, U.p., 1971, p. 69.
- See e.g.Fuller, Lon, The Morality of Law. Conn., Yale U.p., 1964.
- e.g.Unger, Roberto Mangabeira, Knowledge and Politics. New York, Free Press, 1975.
- Needham, Joseph, Science and Civilization in China, Vol.2, Cambridge U.p., 1969, p. 522.
- Seagle, W. The History of Law. New York, Tudor, 1946, p. 35.
- e.g.Hart, H.L.A., The Concept of Law, O.U.p., 1961. Also, Seagle, op. cit., pp. 19–20. See also the discussion of Hobbes in Wolin, Sheldon, S., Politics and Vision: Continuity and Innovation in Western Political Thought. London, Allen & Unwin, 1961. Chapter Eight: “Hobbes: Political Society as a System of Rules”.
- “A contract has…nothing to do with the personal, or individual intent of the parties. A contract is an obligation attached by mere force of law to certain acts of the parties…If…it were proved by twenty bishops that either party…intended something else than the usual meaning which the law imposes upon them, he would still be held, unless there were some mutual mistake, or something else of the sort”. Per Judge Learned Hand in Hotchkiss v National City Bank of New York (1911) 200 Fed. 287, 293.
- Legal realism is a form of skepticism directed against legal formalism and advocating policy reform of and through law: a purposive form of legal rationality; social engineering. See e.g. Pound, R., Interpretations of Legal History, op. cit. Also Llewelyn, K., “Some Realism about Realism” (1931) 44 Harvard Law Review, 1222; and, Kairys, D., ed. The Politics of Law: A Progressive Critique. New York, Pantheon, 1982.
- e.g.Seagle, The Quest for Law, “there is no law until there are courts” and “really primitive people have no courts and no conception of the state”, p. 69. Cited by Hoebel, op. cit., p. 21.
- Schmitt, Carl, “The Plight of European Jurisprudence” (1990) 83 Telos, pp. 35–70.
- Ibid., p. 57.
- Ogilvie, Sir Charles, The King's Government and the Common Law 1471–1641. Oxford, Basil Blackwell, 1958, p. 4.
- Wolin, op. cit., pp. 260, 265–266.
- However, Cardinal Wolsey attributed greater authority to equity than to common law thus threatening “the common law courts with extinction”. Nevertheless, the antithesis between law and equity was clear in his claim that “justice was rarely denied just because it might happen to be illegal”. Endicott, T.A.O., “The Conscience of the King: Christopher St German and Thomas More and the Development of English Equity” (1989) 47, University of Toronto Faculty of Law Review 549. On the tension between common law and equity in sixteenth century England see e.g. Guy, J.A., Christopher St German on Chancery, Seldon Press, 1985, pp. 65–94. Equity was not to be a mere appendage to the common law after the Judicature Act. As Lord Cairns stated: “The court of law is now not a court of law or a court of equity; it is a court of complete jurisdiction.” Pugh v Health (1882) 7 App. Cas. 235 at 237.
- Husserl, Edmund, Ideas: General Introduction to Pure Phenomenology. Trans, by Boyce Gibson. London, Collier, 1931, p. 389.
- Landgrebe citing Husserl—though not discussing law; Landgrebe, Ludwig, “A Meditation on Husserl's Statement: ‘History is the Grand fact of absolute Being’”. (1974) The Southwestern Journal of Philosophy Vol.5. No. 3, pp. 111–125 at p. 111. However, a comprehensive history of legal and political forms is well beyond the scope of this paper which does not purport to be a history of law or politics.
- “The Plight of European Jurisprudence”, op. cit., p. 58.
- For a modem American, in contrast to the ancient Greek attempt to distinguish between law and politics see Marbury v Madison, 1 Cranch 137 2 L. Ed. 60 (1803). See also Diamond v Chakrabarty 447 U.S. 303 (1980) where it is argued that it is for Congress to define and for the court to construe; i.e. to determine what the sovereign meant when the sovereign spoke. However, as is clear in the account provided by James Madison, Federalist No. 10, and as argued by Gordon Wood, The Creation of the American Republic, New York, Norton, 1972, the state is no longer viewed in the classical Aristotelean sense as an “association of persons formed for some good purpose” but is absorbed in the management of factional rivalry; that is, the modem state is no longer concerned with the cultivation of virtue but with the balancing of interests.
- Quoted in Arendt, H. The Human Condition, Chicago, Chicago U.p., 1958, p. 63.
- Ibid.
- Tallenbach, G., (1940) Church, State and Christian Society at the Time of the Investiture Contest, p. 15; cited by Black, Anthony, Guilds and Civil Society in European Political Thought from the Twelfth Century to the Present, New York, Cornell U.p., 1984, p. 35.
- Arendt, The Human Condition, op. cit., p. 63, footnote 62.
- Ibid., p. 63.
- Ibid., p. 64.
- Aristotle, The Politics. Trans, by T.A. Sinclair. Revised by T. J. Saunders, Penguin Books, 1981. Aristotle states, “property is meant for action”: 1254a9.
- Ibid., 1255b16; also Aristotle, The Nicomachean Ethics. Trans, by D. Ross, Oxford U.p., 1980, p. 210, 1160b19–1161a9.
- Crisis, p. 145.
- Husserl, Edmund, “The Attitude of Natural Science and the Attitude of Humanistic Science, Naturalism, Dualism, and Psychophysical Psychology” in Crisis pp. 315–334 at p. 329.
- Crisis, p. 144.
- Ibid. In drawing an analogy between the bios politikos and the transcendental attitude I am using Husserl's phraseology which describes the transcendental attitude; this applies to the phrase “totally unpractical” attitude: e.g. Crisis, p. 282.
- Aristotle, The Nicomachean Ethics, 1172b36 cited in Arendt, H., The Human Condition, op. cit., p. 199.
- Aristotle, The Politics, 1245a9.
- Aristotle, The Nicomachean Ethics, 1141b21.
- Arendt, The Human Condition, p. 25.
- Arendt, The Human Condition, p. 64.
- Ibid., p. 191.
- Jones, J.W., The Law and Legal Theory of the Greeks, op. cit., p. 4.
- See e.g.Roberts, J.W., City of Sokrates: An Introduction to Classical Athens. London, Routledge & Kegan Paul, 1984, describes the legislative developments of the fifth and fourth centuries, B.C.; pp. 48–57.
- Schmitt, Richard, “Husserl's Transcendental Phenomenological Reduction” in Philosophy and Phenomenological Research, Vol. XX, Sept. 1989—June 1960, pp. 238–245 at p. 243.
- “The Vienna Lecture” in Crisis, pp. 293–294.
- Ibid., p. 283.
- Aristotle, The Politics, 1325b23.
- Crisis, p. 172.
- Ibid.
- “The Vienna Lecture”, p. 298.
- See e.g.Pirenne, Henri, Early Democracies in the Low Countries: Urban Society and Conflict in the Middle Ages and the Renaissance. New York, Norton, 1971, pp. 34–54. Anderson, Perry, Lineages of the Absolutist State, London, New Left Books, 1974, pp. 18–29. Poggi, G., The Development of the Modern State, Hutchinson, 1978. pp. 32–43.
- Pirenne, op. cit., p. 35.
- Black, op. cit., p. 24.
- Ibid., p. 16.
- As stated by Bartolus of Sassoferrato, (Commentaries on Digest Turin, 1577, 1.1.9; m.6) cited by Black, op. cit., p. 25.
- Anderson, Lineages of the Absolutist State, pp. 18–29.
- Seneca, De Beneficiis cited by Ogilvie, Sir Charles, The King's Government and the Common Law 1471–1641, op. cit., p. 4
- Vandevelde, Kenneth, “The New Property of the Nineteenth Century: The Development of the Modem Concept of Property” (1980) 29 Buffalo Law Review 325, at p. 328.
- Arendt, op. cit., p. 328. Arendt discusses the implications for the private realm as an enclosed space in “the transformation from immobile into mobile property until eventually the distinction between property and wealth” is lost. The Human Condition, pp. 69–70.
- Ibid., p. 367. And see generally Grey, Thomas, “The Disintegration of Property” in Property: Nomos XXII (eds) Pennock, J.P. and Chapman, J.W. New York, University Press, 1980, pp. 69–82.
- e.g.Kearney, James, The Action for Breach of Confidence in Australia. Sydney, Legal Books, 1985. Finn, p. D., Fiduciary Obligations. Sydney, Law Book Co., 1977, at p. 131.
- Cited in Argyll v Argyll below.
- Duchess of Argyll v Duke of Argyll [1967] Ch.302.
- This may be compared with the Aristotelean claim that all associations—polis, village, household—are based on and share in philia: Politics, 1252b; 1280b35–1281a8.
- Foster and Others v Mountford and Rigby Ltd (1977) 14ALR 71.
- Ibid., at p. 75. The Deuteronomic commandment on usury, in discriminating between brothers and others, re-affirmed membership of that tribal ethical world, and thereby restated the boundary of the community, to exhibit the rules’ mural function and constitutive dimension. For the history of the Deuteronomic commandment over a two and a half thousand year period see Nelson, Benjamin, The Idea of Usury: From Tribal Brotherhood to Universal Otherhood. Chicago U.p., 1969.
- Seager v Copydex ltd [1967] 2 All ER 415 at 417.
- Exchange Telegraph v Central News [1897] 2 Ch.48.
- Husserl, Ideas, Trans, by Boyce Gibson, op. cit., p. 389.
- Ibid., p. 387.
- See e.g. Aristotle, The Politics, 1257b25–40; and MacIntyre, Alasdair, After Virtue: A Study in Moral Theory. London, Duckworth, 1981, p. 185.