A New Introduction to Jurisprudence A New Introduction to Jurisprudence takes one of the central problems of law and jurisprudence as its point of departure: what is the law? Adopting an intermediate position between legal positivism and natural law, this book reflects on the concept of ‘liberal democracy’ or ‘constitutional democracy’. In five chapters the book analyses: (i) the idea of higher law, (ii) liberal democracy as a legitimate model for the state, (iii) the separation of church and state or secularism as essential for the democratic state, (iv) the universality of higher law principles, (v) the history of modern political thought. This interdisciplinary approach to jurisprudence is relevant for legal scholars, philosophers, political theorists, public intellectuals, historians, and politicians. Paul Cliteur is Professor of Jurisprudence at Leiden University, the Netherlands. He is the author of The Secular Outlook (2010) and Theoterrorism v. Freedom of Speech (forthcoming). Afshin Ellian is Professor of Jurisprudence at Leiden University, the Nether- lands. He edited The State of Exception and Militant Democracy in a Time of Terror (2012) and Counterterrorism after the IS-Caliphate (forthcoming). This page intentionally left blank A New Introduction to Jurisprudence Legality, Legitimacy, and the Foundations of the Law Paul Cliteur and Afshin Ellian First published 2019 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2019 Paul Cliteur and Afshin Ellian The right of Paul Cliteur and Afshin Ellian to be identified as authors of this work has been asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Cliteur, P. B., author. | Ellian, Afshin, 1966-, author. Title: A new introduction to jurisprudence : legality, legitimacy and the foundations of the law / Paul Cliteur, Afshin Ellian. Description: New York, NY : Routledge, 2019. | Includes bibliographical references and index. Identifiers: LCCN 2018055139| ISBN 9780367112349 (hardback) | ISBN 9780367112356 (pbk.) Subjects: LCSH: Jurisprudence. | Law--Philosophy. Classification: LCC K230.C595 .A35 2019 | DDC 340/.1--dc23 LC record available at https://lccn.loc.gov/2018055139 ISBN: 978-0-367-11234-9 (hbk) ISBN: 978-0-367-11235-6 (pbk) ISBN: 978-0-429-02546-4 (ebk) Typeset in Sabon by Taylor & Francis Books Contents List of figures viii Preface ix Acknowledgment of sources xiii 1 Legality and legitimacy in natural law and legal positivism 1 Five characteristics of natural law 4 Plato 6 Teleology 7 Man as a rational being 9 Metaphysical principles 10 Universal validity 10 A touchstone 11 Objections 12 Sein and Sollen 14 Leerformeln 15 Feelings 16 Evaluation of the objections 17 Lon Fuller 17 Natural law, a form of morality? 18 Judge and conductor 19 Ubi societas, ibi ius 20 Again: empty formulas? 20 Alternative natural law 21 Perelman and Hayek 22 Hayek on spontaneous order 23 Tradition 25 A touchstone for the law? 26 Gustav Radbruch 27 vi Contents H.L.A. Hart 29 The Hart-Fuller debate 30 A synthesis 30 Lex iniusta non est lex? 32 2 Constitutional democracy as a legitimate form of government 36 Postmodernism 37 Constitutional democracy 40 Democracy 42 Constitutionalism 43 Five principles of constitutionalism 46 The CCP 57 Humanism 59 Humanism and constitutionalism 61 Tension between entrenchment and democracy 62 Paine and Burke 63 Judicial review 65 Contradictions within the CCP 66 Two consequences 68 The end of history thesis again 72 3 The separation of church and state 75 Bishop Nazir-Ali 76 The atheist state 85 The theocratic state 87 The state with a state religion 99 The multicultural or multireligious state 102 The secular or agnostic state 106 4 The universality of values and principles 114 Cultural conflicts 115 Live and let live 117 Female genital mutilation 118 The conflict further defined 119 Tolerance out of respect 121 Cultural relativism 122 Six cultural relativists 123 Stace, Bloom, and Bork 140 Dickens and Kipling 142 Contents vii Seven elements of cultural relativism 145 Criticism of cultural relativism 150 Dworkin on “critical morality” 150 “Critical morality” and cultural anthropology 153 Consistency 155 Practical objections 158 Universality is indispensable 158 Hamed Abdel-Samad 162 5 The classical foundations of modern law 165 The modern worldview 167 From the Middle Ages to the modern era 169 Descartes 171 Criminal law and modernity 173 Enlightenment 178 Contract thinkers 180 Human rights 190 Rousseau and Hobbes again 194 Index 200 Figures 1.1 On June 11, 1776, the American Congress appointed a committee of five members tasked with drafting a declaration of independence. These members were John Adams, Benjamin Franklin, Thomas Jefferson, Robert R. Livingston, and Roger Sherman. In Jean Leon Gerome Ferris’s painting (1900), we see the committee at work. In a little over two weeks, Jefferson wrote a first draft, which was presented to Congress on June 29, 1776. 2 1.2 Socrates in his cell. After the Athenian authorities have sentenced him to drinking poison hemlock, he spends his last hours with his pupils, Plato among them. The painting The Death of Socrates (1762) is by Jacques-Philip-Joseph de Saint Quentin. 8 1.3 The Scottish philosopher David Hume, 1711–1776, painted here by Allan Ramsay in 1766, mostly became famous for his skeptical approach to the principle of causality. We do not see the cue’s thrust causing the roll of the snooker ball, but we do interpret reality in that way. 26 3.1 Israel worships the Baal Peor and Phineas kills Zimri and Cozbi, Maerten de Vos. 97 Preface The book A New Introduction to Jurisprudence: Legality, Legitimacy, and the Foundations of Law is a legal philosophy-flavored introduction to the law. It is compulsory reading for freshmen law students at Leiden University, the Nether- lands. The book’s purpose is to give law students a grasp of the “foundations of law.” The course Foundations of Law is part of the wider course Jurisprudence, which consists of three parts in Leiden: (i) Introduction to Positive Law, (ii) Foundations of Law, (iii) and Methods and Techniques of Legal Science. The course Jurisprudence can be designed in different ways, as the historical development of the course demonstrates. Generally considered the first Pro- fessor of Jurisprudence is John Austin (1790–1859), with his book The Province of Jurisprudence Determined (1832). He was the first to give the course inde- pendent status. Before, there had, of course, also been thinking on law, state, democracy, constitutionalism, just punishment, just war, and other subjects that are covered in Jurisprudence, but it had always (as in Plato, Aristotle, and Thomas Aquinas) been part of a general philosophy. Austin turned Jur- isprudence into a legal specialty, although a specialty of the most general nature, because it is the most general course that is taught at law faculties. (Loosely quoting Dutch historian Jan Romein [1893–1962], one could say that a practitioner of Jurisprudence is specialized in the general.) *** Most handbooks in Jurisprudence feature a mix of subjects that are expected to offer jurists an intensification of their study of positive law. In Jurisprudence: The Philosophy and Method of the Law (1962), Edgar Bodenheimer (1908– 1991), a German scholar who immigrated to the Unites States in 1933 (Berlin, California), presents a historic introduction to legal philosophy that covers the classical movements of “utilitarianism,”“analytical positivism,”“sociological jurisprudence and legal realism,” and “the revival of natural law and value- oriented jurisprudence.” This is supplemented by a thematic part in which “the need for order,”“the quest for justice,”“the rule of law,” and “law as a synthesis of order and justice” are discussed. x Preface In Jurisprudence: The Philosophy and Method of the Law (1962), the British R. W.M. Diaz (1921–2009) provides an overview and analysis of the core concepts of legal science, such as “justice, power, liberty, custom, values, persons, ownership,” supplemented by an overview of the most important philosophical movements in legal thought, such as “positivism,”“pure theory of the law,”“historical and anthropological approaches to the law,”“realism,” and “natural law thinking.” The American judge and legal scholar Richard A. Posner (b. 1939) presents a multitude of subjects, in which normative and methodological aspects of legal sci- ence and legal practice are connected, in The Problems of Jurisprudence (1990). Sometimes books do not mention Jurisprudence in their title, but do cover the subjects that other authors deal with under that term, such as the Brits S.I. Benn (1920–1986) and R.S. Peters (1919–2011) in Social Principles and the Democratic State (1959). Benn and Peters use a threefold division of (i) rules, (ii) social prin- ciples, and (iii) the principles of the democratic state. A New Introduction to Jurisprudence adopts the approach of other books on the subject of Jurisprudence, but (and here a warning is in order) it also differs in significant ways. We will address those differences now. First, the subject “methods and techniques of legal science” is beyond the scope of this book. The subjects “legal reasoning,”“analysis of rules and prin- ciples,” and “finding of law” are dealt with in a different framework (in another part of the freshman year in Leiden), not in this book.