Legal Consciousness

Publikation: Bog/antologi/afhandling/rapportAntologiForskningfagfællebedømt

The concepts of legal culture and legal consciousness have different meanings, and there is disagreement among theorists about the proper use of the concepts. The concept of legal consciousness seems to be neglected by legal theory. Based on Ross’s theory, legal consciousness (LC) can be defined as a prima facie irrational structure of disinterested attitudes of citizens (popular LC) and legal officials (legislators’ LC; judges’ LC) towards the norms of changing and applying the legal system (formal LC) and the norms regulating behaviour (material LC). It is the fact to be considered when modifying legal order and which can be influenced by normative influences. Legal consciousness could be an interesting concept for several reasons.
1. The concept of law (CL). LC can contribute to a better understanding of law. It occupies an important place in Ross’s theory, and his views may be the cause of disagreement among scholars. It is closely related to the concept of legal validity, internal point of view, sources of law, interpretation and legal politics.
2. The role of legal consciousness in legal theory and legal sociology (LT & LS). The LC has already been used by some legal theorists (besides Ross), e.g. those belonging to the historical school of law (Savigny), legal realism (Petrażycki) or sociological jurisprudence (Pound). It might be interesting to analyse other authors writing about this concept or commenting on its relevance or irrelevance for legal theory. At the same time, the legal sociologists understand this concept in different ways. The contributions of scholars from two disciplines - legal theory and legal sociology - could clarify the meaning and the role of the concept for both disciplines.
3. Adjudication (A). A description of the practice of judges is not complete without addressing legal consciousness. This refers to both the conceptual analysis of adjudication and the empirical study of judges’ work. Examining the extent to which judges’ actual legal practice, as manifested in the courts’ decisions and justifications, conforms to models of legal reasoning and doctrines could provide important insights. However, assessing the judges’ LC and the popular LC is as important to understanding adjudication as researching judgments and could be further explored through empirical studies of attitudes.
4. The modification of the legal system (MLS). The transformation of the legal system occurs in different modalities, e.g. the transition from the socialist to the capitalist legal order, the transition from the theological to the secular state, the accession of the European states to the EU, the separation of the new states from the existing ones, or the process of decentralization/regionalization of the state. The conceptual description of these legal phenomena and empirical research is hardly possible without a concept of LC.
5. Constitutionalization and deconstitutionalization of the legal order (C&Dc). The new elements of constitutionalism have spread in most countries of the world. At the same time, recent events in some countries are perceived as having a negative impact on constitutionalism. Both processes cannot be described or empirically researched without considering LC.
6. Deliberate Normative Change (DNC). Deliberate normative change (legislation; law-making) is often portrayed in legal theory as "a contingent and philosophically peripheral aspect of law," and modern positivists are far less interested in deliberate law-making than in courts (Waldron). Ross devoted much of his book "On Law and Justice" to this topic. The concept of LC could be used to describe and empirically explore: DNC, the practice of the legislature (could be related to Legisprudence), and the activities of judges when they are in the area of legal politics.
7. International law (IL). The IL has always been considered in legal theory as a special case of the legal order. The approaches of international judges and other quasi-judicial bodies, as well as the behaviour of states and international organizations in the creation of law, are determined by the legal consciousness towards IL.
Bidragets oversatte titelRetlig bevidsthed
ForlagSpringer Nature Switzerland
Antal sider300
StatusUnder udarbejdelse - 2024
Begivenhed30th biennial World Congress of the International Association for the Philosophy of Law and Social Philosophy (IVR) - Dimitrie Cantemir Christian University, Bucharest, Rumænien
Varighed: 3 jul. 20228 jul. 2022
Konferencens nummer: 30
NavnLaw and Philosophy Library


Konference30th biennial World Congress of the International Association for the Philosophy of Law and Social Philosophy (IVR)
LokationDimitrie Cantemir Christian University

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  • Det Juridiske Fakultet - retsfilosofi, retsrealisme, skandinavisk retsrealisme, Alf Ross, retlig bevidsthed

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