Showing posts with label Hans Kelsen. Show all posts
Showing posts with label Hans Kelsen. Show all posts

October 17, 2013

The Influence of Robert M. Cover

Roy Andrew Partain, Soongsil College of Law, has published Ecologies of Paideic Law: Environmental Law and Robert M. Coverʼs Jurisprudence of 'Nomos and Narratives' , at 24 Hanyang Law Review 423 (2013). Here is the abstract.

This article provides an extensive introduction to the legal philosophy of Robert M. Cover and begins a discussion on how his principles of jurisgenesis could be applied in environmental law. This article suggests that a deeper appreciation of Cover’s jurisprudence could better assist in the development of climate change legislation.
Robert M. Cover was a legal scholar at Yale Law School who died in 1986, tragically early in his career, leaving many aspects of his innovative jurisprudence incomplete. Despite those circumstances, he has become one of the top-most cited legal scholars in American jurisprudence. In particular, he is best known for his “Nomos and Narratives” theory of law. Cover’s legal philosophy holds that the laws and narrative traditions of a culture cannot be critically separated, that they must be understood to operate intertwined. Further, he argued certain aspects of the narrative cultures must be included in the concept of law, in the corpus juris, alongside more explicit forms such as constitutions, legislations, and judicial decisions. Thus, Cover argued, legal scholars have been overly focused on one type of law to the neglect of other types of law.

Cover introduced the concept of paideic jurisgenesis and of jurispathic judges to counter the legal theories of H.L.A. Hart, Hans Kelsen, and Ronald Dworkin. Cover’s theory provides a more complete framework to answer Dworkin’s question of how judges resolve ‘hard’ legal cases. A ‘hard’ case exists when both sides of an adversarial courtroom can provide sound legal support for their arguments; Dworkin posited that jurisprudence is simply the investigation of how judges resolve that conflict. Whereas Hart, Kelsen and Dworkin saw a shortage of law, of a need to explain how law was created by judges, Cover concluded to the contrary that law actually existed in over-supply and that judges act to eliminate surplus laws to resolve ‘hard’ problems.

Cover balanced the development of paideic laws, i.e. narratively evolved laws, with the controls of imperial, i.e. governmental, legislation and jurispathic judges. Cover named this universe of legal meaning and context-rich interpretations ‘nomos’, borrowing from the Greek language for ‘law’. Cover proposed that social groups created laws via social cohesive narratives of obligations, coercion, and socially-endorsed enforcement. But this organic process of legislation could create too many overlapping legal systems as each society contains multiple social groups. Legislatures were seen by Cover as providing a democratic process to select Kelsenian Grundnormen to better align the diverse legal narratives of multiple social groups. Cover then saw the key role of judges as jurispathic, to eliminate legal chaos when too much law exists.

A legal scholar, in Cover’s world, has two roles. First, to observe and appreciate the organic and paideic narratives that create the laws in the legal scholar’s nomos-verse. Second, to provide the legal scientific understandings necessary to support the judiciary’s jurispathic duties. In both cases, a legal scholar has the opportunity to engage and interact in the development of law. A legal scholar can become engaged in the development of the paideic narratives and social dialogs that create paideic law. A scholar can assist in the development of the imperial legal structures that provide stability and unity to the social group. Cover was particularly interested in the development of Human Rights and Civil Rights laws, but his theories and techniques have found applications in many other areas of law.

This article provides a preliminary example of Cover’s theories in regards to the development of climate change legislation. The article takes notice of the historical problems to develop and enforce climate change legislation. The article examines Cover’s theories to uncover the practical legal and policy tools suggested by his theories of jurisprudence. The article suggests a list of methods wherein Cover’s theories could be applied to climate change legislation.

Donwload the article from SSRN at the link. 

October 19, 2012

Hans Kelsen and Modern Law

Christoph Kletzer, King's College London School of Law, has published Primitive Law. Here is the abstract.
This paper discusses the nature and functioning of modern law along Kelsenian lines, starting from a very instructive example of Ancient Germanic Law regulating the legal effects of murder.
Download the paper from SSRN at the link.