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A Post-Analytical Approach to Philosophy and Theory of Law

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Edited By Andrzej Bator, Zbigniew Pulka and Jan Burzyński

Post-analytical philosophy of law departs from the traditional view which considers philosophical cognition merely as a sense-making and optimizing activity. It also questions the apparently universal and objective character of the theorems put forward by existing analytical philosophy. Just like every scientific trend whose name is supplemented with the "post" prefix, it does not break with its past, but rather seeks to critically revisit its established achievements. The main goal of post-analytical philosophy is no longer to impose a conceptual structure upon chaos in the realm of legal and political phenomena. Rather, it seeks to deconstruct the analytical, both philosophical and legal, narrative to expose it as a collection of schemes which oversimplify – if not mystify – the legal and political reality. This kind of diagnosis paves the way towards the construction of a positive program of post-analytical philosophy of law, which the focus of this book.

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Law After the Death of God. Jurisprudence and Some Assertions of the Contemporary Philosophy

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Religious metaphors are handy in presenting the condition of law because the connections between legal and religious thinking are evident. Leszek Nowak convincingly writes on the subject that

there seems to be one area of thinking, apart from theology, where the additional word “dogmatics” is used and even there it comes with some – rather justified – pride. It is the dogmatics of law, i.e. jurisprudence of different areas of law, civil, penal, administrative, constitutional, just to name the elementary few. It is therefore worth making a comparison with theology.1

Without going into details, I will state that the comparison reveals more similarities than differences: apart from the above-mentioned attitude towards dogmatic considerations, there is a thetical concept of binding of norms, rules of text exegesis, and the specific image of the rational lawmaker. Ernst Kantorowicz, a specialist in theology and theory of law, argues that the latter has two “bodies,” one alive and specific, the other eternal and ideal.2

Friedrich Nietzsche in The Joyful Wisdom included the story of a madman who runs among citizens in broad daylight with a lantern in hand:

A madman jumped into the [crowd] and drilled them with his eyes. “Where is God?” he asked, “I want to say it! We have killed him – you and me! We are all murderers of God! … Do we not yet hear the laments of the undertakers of death who buried God? Do we not yet smell the decomposition of...

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