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9 Ratio Juris 1 (1996)

handle is hein.journals/raju9 and id is 1 raw text is: Ratio Juris. Vol. 9 No. 1 March 1996 (1-14) Universal Legal Concepts? A Criticism of General Legal Theory MAURO BARBERIS Abstract. General theory of law (general jurisprudence, allgemeine Rechtslehre) has often claimed to deal with general or universal concepts, i.e., concepts which are deemed to be common to any legal system whatsoever. At any rate, this is the classic determination of such a field of study as provided by John Austin in the nineteenth century-a determination, however, which deserves careful analysis. In what sense, indeed, can one assert that some legal concepts are common to different legal sys- tems? And, above all, in what sense can one assert that some concepts are common to different languages and cultures? My paper sets out to discuss such questions- although, obviously, they are too complicated to be answered in a single paper. The first section reconstructs the Austinian argument for general jurisprudence by plac- ing it in its historical context. The second section tries to apply to legal concepts some suggestions derived from the contemporary debate on conceptual relativism. The third section, returning to the Austinian problem, comes to the following conclusion: Even if conceptual relativism were true and there were no general or universal legal concepts, this would not invalidate in any way the didactic and scientific value of (general) theory of law. 1. Austin, Jurisprudence, and Legal Education To be sure, the idea of general or universal legal concepts is not a new one in Western legal history-at any rate, it is an idea involved in the age-old belief in the existence of natural law. In natural law theories, however, attention is usually devoted to the generality or universality not of concepts, but of rules or principles. As an explicit assumption, the idea at issue seems to be pecu- liar to nineteenth-century legal discourse. In fact, it can be found in those legal theories which break with the natural law tradition, i.e., (general) juris- prudence and allgemeine Rechtslehre. It is interesting to note that in Austin's jurisprudence, unlike in German legal theory, this idea is advanced from the very beginning (cf. Barberis 1993, chaps. 3 and 4). © Blackwell Publishers Ltd. 1996, 108 Cowley Road, Oxford OX4 1JF, UK and 238 Main Street, Cambridge, MA 02142, USA.

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