This book develops a historical concept of liberal democratic law
through readings of the pivotal twentieth century legal theoretical
positions articulated in the work of Herbert Hart, Ronald Dworkin,
Duncan Kennedy, Rudolf Smend, Hans Kelsen and Carl Schmitt.
It assesses the jurisprudential projects and positions of these
theorists against the background of a long history of European
metaphysics from which the modern concept of liberal democratic law
emerged. Two key narratives are central to this history of European
political and legal metaphysics. Both concern the historical development
of the concept of nomos that emerged in early Greek legal and
political thought. The first concerns the history of philosophical
reflection on the epistemological and ontological status of legal
concepts that runs from Plato to Hobbes (the realist-nominalist debate
as it became known later). The second concerns the history of
philosophical and political discourses on law, sovereignty and justice
that starts with the nomos-physis debate in fifth century Athens and
runs through medieval, modern and twentieth century conceptualisations
of the relationship between law and power. Methodologically, the reading
of the legal theoretical positions of Hart, Dworkin, Kennedy, Smend,
Kelsen and Schmitt articulated in this book is presented as a
distillation process that extracts the pure elements of liberal
democratic law from the metaphysical narratives that not only cradled
it, but also smothered and distorted its essential aspirations.
Drawing together key insights from across the fields of jurisprudence
and philosophy, this book offers an important and original
re-articulation of the concept of democratic law.
