Chapter

A Dialectical Approach

ALAN NORRIE

in Punishment, Responsibility, and Justice

Published in print October 2000 | ISBN: 9780198259565
Published online January 2010 | e-ISBN: 9780191710636 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198259565.003.0004

Series: Oxford Monographs on Criminal Law and Justice

A Dialectical Approach

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This chapter argues that the traditional Hegelian desire to ‘rationalise the real’, and thereby to resolve the problems of law via dialectical method, must be rejected. A dialectical approach, properly employed, reveals law's continuing historical and structural problems. Nonetheless, Georg Hegel's dialectical understanding of the limits of analytical reasoning, described and explained in this chapter as identity thinking, remains a crucial staging post. Hegel's dialectic is followed, and then transcended in favour of Roy Bhaskar's approach. This chapter outlines the opposition between analytical ('identity') thinking and dialectical (‘entity relational’) thinking, and explains, using Hegel, how the dialectical critique works for criminal justice. Bhaskar's entity relationism and dialectical critical realism are discussed, along with false separation in Immanuel Kant's morality of form and the limits of an analytical model of legal reasoning.

Keywords: Georg Hegel; analytical reasoning; identity thinking; dialectic; Roy Bhaskar; criminal justice; legal reasoning; critical realism; Immanuel Kant; false separation

Chapter.  11769 words. 

Subjects: Comparative Law

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