Date of Degree

9-2019

Document Type

Thesis

Degree Name

M.A.

Program

Liberal Studies

Advisor

Elizabeth Macaulay-Lewis

Subject Categories

Agency | Applied Ethics | Applied Linguistics | Civil Rights and Discrimination | Comparative and Foreign Law | Conflict of Laws | Constitutional Law | Epistemology | Ethics and Political Philosophy | First Amendment | Fourteenth Amendment | Human Rights Law | Inequality and Stratification | International Humanitarian Law | International Law | International Relations | Law and Philosophy | Law and Politics | Legal Theory | Natural Law | Philosophy of Language | Public Law and Legal Theory | Race and Ethnicity | Rule of Law | Second Amendment | Semantics and Pragmatics

Keywords

Epistemology of Law, Intentionality, Formalism, Judicial Discretion, Semantic Sting, Open Texture, Substantive Justice, Aim of Law, Legal Positivism, Grundnorm

Abstract

Human Rights Law (HRL) and Constitutional Law (CL) are often considered inefficacious, vague and general. These are types of law that frequently involve contradictory rulings or the production of new jurisprudence. While two parties can offer equally valid arguments, what explains this seemingly contradictory character of these areas of law?

This thesis seeks to reveal the most salient issues that can make HRL and CL inefficacious, by looking at their linguistic and philosophical foundations. As HRL and CL are often founded in declarations and proclamations, philosophy of language, particularly the theory of speech acts, offer possible ways of understanding their internal operation.

First, I provide historical background on how HRL and CL found their object and gained validity. Secondly, I present an overview of the foundations of natural law and positive law, and then a critique presenting the necessary elements of an epistemologically comprehensive account of legal interpretation. This critique starts with the foundational elements of natural law and then looks at positive law, philosophy of language, logical positivism, and the limits of analytic philosophy, ending with ways to qualify moral and value claims as a necessary element for their proper operation.

This work is embargoed and will be available for download on Thursday, September 30, 2021

Graduate Center users:
To read this work, log in to your GC ILL account and place a thesis request.

Non-GC Users:
See the GC’s lending policies to learn more.

Share

COinS