We all – at least all jurists – share a conception of law and a legal conception, and we dispute different conceptions of this concept. Positivism defends a particular point of view, and I have tried to defend a competing point of view. We disagree on what legal rights are, just as we philosophers who discuss justice do not agree on what justice is. I focus on the details of a particular legal system with which I am particularly familiar, not only to show that positivism provides a misrepresentation of that system, but to show that positivism gives a bad idea of the concept of legal claim (Dworkin 1977, 351-52). This article in the Legal Theory Lexicon discusses the idea of consent in legal contexts involving interpersonal (but not political) relationships. The article will explore what consent is and why consent is both legally and morally important. Our investigation will also examine under what conditions consent could be described as «invalid», for example in cases where consent was obtained through deception or coercion, or where the consenting person was unable to give consent. As always, the Lexicon of Legal Theory is aimed at law students, especially first-year law students, who are interested in legal theory. In later writings, Dworkin extended the scope of his «constructivist» view beyond jurisprudence to include the field of legal theory.

Dworkin distinguishes conversational interpretation from artistic/creative interpretation, arguing that the task of interpreting a social practice is more akin to artistic interpretation: are first-order legal theories inherently or necessarily evaluative, or can they be purely descriptive? Needless to say, if such a presentation of legal principles is correct, the separation thesis can no longer be accepted. But many legal philosophers doubt that there are legal principles such as Dworkin envisaged. There is another, more natural way of explaining the distinction between rules and principles in law: the relevant difference concerns the degree of universality or indeterminacy of the normative act prescribed by the relevant legal norm. Legal norms may be more or less general or vague in their definition of the normative act prescribed by the rule, and the more general or vague they are, the more they tend to have those quasi-logical characteristics that Dworkin attributes to principles. More importantly, if you make legal validity dependent on norms, such as legal principles, on moral arguments, you allow the possibility of an entire community of law rendering its laws bad. Any moral error in the reasoning leading to a legal principle could render the conclusion about the principle untenable and thus the principle itself invalid. Since nothing prevents judges and other legislators from making moral mistakes, nothing prevents an outcome in which an entire legal community and for a long time is wrong in its laws (Marmor 2011, Chapter 4). Perhaps Dworkin would not have found it problematic, but others would; The idea that an entire community of law can systematically err on its own laws may seem deeply problematic to legal theorists. Scanlon`s contractualism is a form of deontological moral theory because it makes the rightness or falsity of the action depend on its conformity with a set of moral rules.

Deontological theories can be contrasted with consequentialist theories and aretaic (or virtue-centered) theories. For each of these ideas, there are entries in the lexicon of legal theory. In this passage, Blackstone articulates the two statements that form the theoretical core of classical naturalism: 1) There can be no legally valid norms that contradict natural law; and 2) all valid laws derive their power and authority from natural law. From this point of view, to paraphrase Augustine, an unjust law is not a law at all. Probably the most influential argument for the assumption that legal theory is inherently evaluative is based on the idea that legal theory is an interpretive enterprise in Dworkin`s sense (Dworkin 1986; for criticism, see Dickson 2001, 105; Marmor, 2011, pp. 126-30). To say that legal theory is an interpretive project is to claim that a complete understanding of what law is requires interpreting it as the best example of the kind of things it is. Moreover, one might think that to interpret legal practice as the best example of the kind of thing it is, one must make thick judgments about the law. (See entry on legal interpretationism.) An attempt to systematically inform jurisprudence from sociological discoveries developed from the early twentieth century, when sociology began to establish itself as an independent social science, especially in the United States and continental Europe. In Germany, Austria and France, the work of «free law» theorists (e.g. Ernst Fuchs, Hermann Kantorowicz, Eugen Ehrlich and François Geny) encouraged the use of sociological discoveries in the development of legal theory.

The most influential international advocacy of «sociological jurisprudence» took place in the United States, where Roscoe Pound, longtime dean of Harvard Law School, used the term in the first half of the twentieth century to characterize his philosophy of law. In the United States, many later authors followed Pound`s example or developed distinct approaches to sociological jurisprudence. In Australia, Julius Stone vigorously defended and developed Pound`s ideas. In the 1930s, there was a sharp split between American sociological jurists and legal realists. In the second half of the twentieth century, sociological jurisprudence declined as a movement in its own right, with jurisprudence being more influenced by analytic legal philosophy; But with the growing criticism of the dominant orientations of legal philosophy in the English-speaking countries of this century, it has aroused new interest. At present, he is increasingly focusing on providing theoretical resources to lawyers to help them understand new types of regulation (e.g. different ways of developing transnational laws) and the increasingly important interrelationships between law and culture, particularly in multicultural Western societies. [31] There are two different schools of legal realism: American legal realism and Scandinavian legal realism.