法実証主義後の法学理論 The Legal Relation : Legal Theory after Legal Positivism

著者名：Somek, Alexander

Cambridge University Press（2017/09/30発売）

• 言語：ENG
• ISBN：9781107198012
• eISBN：9781108187374

Description

What is law? The usual answer is that the law is a system of norms. But this answer gives us at best half of the story. The law is a way of relating to one another. We do not do this as lovers or friends and not as people who are interested in obtaining guidance from moral insight. In a legal context, we are cast as 'character masks' (Marx), for example, as 'buyer' and 'seller' or 'landlord' and 'tenant'. We expect to have our claims respected simply because the law has given us rights. We do not want to give any other reason for our behavior than the fact that we have a legal right. Backing rights up with coercive threats indicates that we are willing to accept legal obligations unwillingly. This book offers a conceptual reconstruction of the legal relation on the basis of a critique of legal positivism.

Table of Contents

Introduction. The pursuit of theory; 1. Late legal positivism; 2. Legality and irony; 3. Legal science and the common law; 4. The legal relation; 5. Equality, freedom and dignity; 6. The quest for agency.