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Brigham Young University

Legal theory

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Full-Text Articles in Political Science

Why We Don’T Understand The Rule Of Law Or Explaining The Rule Of Law: A Practice In Search Of A Theory, Noel B. Reynolds Jun 2010

Why We Don’T Understand The Rule Of Law Or Explaining The Rule Of Law: A Practice In Search Of A Theory, Noel B. Reynolds

All Faculty Publications

This lecture summarizes the main attempts to formulate an understanding of rule of law among legal theorists and explains why they fail to account for the real experience of law. It also explains key characteristics of law that need to be recognized in an adequate account of the rule of law.


Why We Don't Understand The Rule Of Law, Noel B. Reynolds Oct 2009

Why We Don't Understand The Rule Of Law, Noel B. Reynolds

All Faculty Publications

This paper presents an assessment of current theories of law and their continuing failure to account in a convincing way for the rule of law as an ideal that guides and reassures modern democratic societies. It then explores the possibility that emerging understandings of human evolution and brain function may help us understand the process of convention making in a way that could reveal the underlying moral and epistemological context of law and allow us to identify a complete set of standards for the rule of law in human societies.


Legal Theory And The Rule Of Law, Noel B. Reynolds Jan 2002

Legal Theory And The Rule Of Law, Noel B. Reynolds

All Faculty Publications

This article proposes that the rule of law can be understood as a set of conditions that rational actors would impose on any authority they would create to act in their stead in creating and administering legally binding rules. The authority and obligation associated with law derive from this fundamental convention, and the principles of the rule of law are the conditions of that agreement, which become thereby governing principles to which legislatures, judges, and enforcement agencies can be held in their official actions. These generally recognized standards are inherent in this conventionalist concept of law in the sense that ...


Thomas Hobbes's "A Discourse Of Laws", Noel B. Reynolds Sep 1994

Thomas Hobbes's "A Discourse Of Laws", Noel B. Reynolds

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The recent discovery that an anonymously published 1620 essay was an early writing of Thomas Hobbes invites investigation of his early thinking. Hobbes relied on mostly classical sources to advance a basically conventionalist theory of law and to anticipate twentieth century analyses of the principles of rule of law such as that made famous by F. A. Hayek.


Rule Of Law In Legal And Economic Theory, Noel B. Reynolds Apr 1993

Rule Of Law In Legal And Economic Theory, Noel B. Reynolds

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Legal positivism, the leading version of legal theory, has shown that a concentration on the meanings and logical relations of legal concepts, however much supplemented by intuition, common sense and legal experience, is not adequate to make full sense out of the human experience of law, and the traditional understandings of legal obligation and rule of law in particular. However, modern economic science has advanced a radically individualistic theoretical approach which has propelled economics to the fore as the most successful of the social sciences. And its basic theoretical stance is proving both attractive and adaptable to all the other ...


Liberal Political Theory And The Rule Of Law, Noel B. Reynolds Apr 1986

Liberal Political Theory And The Rule Of Law, Noel B. Reynolds

All Faculty Publications

The efforts of liberal political theorists like John Rawls and Ronald Dworkin to identify principles and rights based on moral truth as authoritative bases for law and politics ignore the insight of Hume and other conservative theorists that the moral possibilities of human nature generally are limited and are in turn limiting on what can be accomplished, from a moral point of view, through law and politics.


The Union Of Legal And Political Theory, Noel B. Reynolds Jan 1986

The Union Of Legal And Political Theory, Noel B. Reynolds

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This paper explores the social science concept of conventions as a way of understanding law that would bridge the enduring gap between natural law and legal positivist legal theories. It further finds in the conventionalist approach a promising account of the rule of law—both in how it may be characterized and in how it can be assessed in particular legal systems.


The Doctrine Of The Rule Of Law In The Twentieth Century, Noel B. Reynolds Jan 1985

The Doctrine Of The Rule Of Law In The Twentieth Century, Noel B. Reynolds

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The concept of rule of law has been recognized repeatedly in twentieth century political and philosophical discussion, but with a constantly shifting meaning. In this paper we document most of the serious contributions to thought about rule of law before 1985 as a background to further work on the topic.