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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