Jurisprudential Entrepreneurship: An Adversity/Opportunity to Limitations in Legal Theory

Updated: May 15

Abhivardhan

Editor In Chief



Human resonance and material footprints manifest their societies and its artefacts. Law, is the ultimate artefact, which cultivates and matures humanity and its institutions not limited to the linearity or hierarchy of legal semantics, which is represented with extraneous restrictions imposed on the observant diabolic limitations in the application apparatus and domain of jurisprudential space of human society. It is somehow limited to the insight of what exact human society we are focusing on and to what dynamism is the human instrument, object, subject or void is under discretion. This enables to develop the field of Law, in its core origins way vague and underdeveloped. Thus, the realm of restrictive approach seems to be conflicting towards a cultivable and justifiable development of the legal system and democratic and non-democratic societies. It even affects the course of International Law. This article provides a special introduction to the field and its scope in the academic and practical world today. Keywords: Synthetic Jurisprudence, Legal Semantics, International Life, Natural Law, Social Morphology.

Introduction

The appetite of law is virtuous, resilient and developmental. Also, it encumbers various attributes of its own innovative pursuit of restrictive yet encumbered rule of law, which is its best introduction a person never ever introduced to this field. However, the questions of uncertainty that affect legal and international community is about the attributes of law, which manifest its development. And the problem begins right there. There can be many citable examples, if we take to understand the realm behind the same. And this raises the punitive issue behind the aspect of rule of law for the matter of natural and real understandability. It is also a bearing conflict between natural law and human law (or positive law) at a larger dimension, after at a larger scale. We may consider this fatal for a democracy, and in general, not only for a democracy, but for any legal system borne upon the sovereign. This is the beauty of law; yet an issue. One of the prominent examples is the problematic nature of human rights regimes in international law and various constitutional legal regimes in states (found in EU, USA, India, Australia, Canada and other democracies; yet China is also a victim of the same). Human Rights, in its morphology, has a wrong structure and sequence. It is linear (Evans, 2005), which means that its principled and resonating development is an outcome of reaction. Even if it is a signified and unrivalled redemption that we have to seek that there exists some historical and pro-anthropological reservations and resurrections of human life, with a varied graduation. Now, this wave of graduation is a defeat if it is not reasonable, way slow and now befitting for the development of the legal infrastructure of any basic law or international legal Grundnorm. This has been expressed per se and instituted well by Kelson, where he regards the chiseling of human artefacts such as customs, norms, legislations etc., in that same prerogative. Unconstitutionality, as his bearing ground, is stipulated in a beautiful excerpt:

[The] author of the constitution and the legislator may not be aware, or not fully aware, of this situation. But an objective description of the legal situation created consciously or unconsciously by a constitution that does not confer the examination of the constitutionality of statutes upon an organ different from the legislator must come to this conclusion (Kelsen, 2009, p. 273).

This is an important streamline, which is necessitated to resolve as how we can lead to better and credible solutions for protecting our legal human artefacts, when we fail to address them and understand their dimensions in a wider yet originalist perspective.

A Fundamental Yet Not Fundamentalist Issue

Yet by yet, beyond human rights, we see these problems emergent in traditional legal approaches, such as laws on tort and crime. One of the most prominent categories is of censorship laws, which is sometimes curtailed by an extensive veraciousness of extended laws on free speech (Balkin, 2011, p. 229). Considering the methodology of defamation as a law, it is deemed to understand how it proceeds. It is a restrictive law, which discerns the formulation of retribution cum deterrence at a significantly limited level, as a material social regulator. The legal semantics embellished in defamation law, is not a solution, and rather an inequal enigma, which renders more problems to human manifestations rather than viable solutions[1]. Even using morality as a materialistic legal function in defamation law, akin done in sedition, pornography, prostitution and blasphemy is obstinate and unjustified, because the extent of international human rights law (IHRL) at its private level is veiled in a course of extensive succession, which itself is deemed to be unequal. Balkin has, in his expertise, has determined it with a basic original certainty:

The [law] marks a liminal point. It declares what constitutes unequal treatment as a matter of law. At the same time it also states what is not unequal treatment, or put slightly differently, what forms and claims of in equality the law will not recognize as presenting real or remediable problems of inequality. The law sees only some forms of inequality and not others because that is how law is made. First, law is simply imperfect. It cannot prevent all unfair or unjust inequalities even if it wanted to. Second, and more important, law is a compromise of contending forces and interests in society that is articulated in terms of doctrines and principles. Legal doctrines that enforce ideas of equality enforce the nature of that compromise and restate it in principled terms. Thus, what law enforces is not equality, but equality in the eyes of the law (Balkin, 2011, p. 141).

It is yet not an absolute point in censorship laws, but an imminent reflection arising out of those implications of basic legal systems, elements, concomitants and outcomes, which successfully provide the footprints of such anomalous behaviour of law. This is also a legal footnote of constitutional backlash, observed by international law in Venezuela, USA, India and the EU economies, including the yet to be divorced UK.

Globalization 4.0: A Legal and Global not Globalist Challenge for International Life

Globalization, after its escalating stages of human life, has now reached to the fourth level, the inspiring yet issuing one. In economic terms, major economies are thriving and struggling at the same time with their political and social backlashes, which has affected the consciousness of a world economy, which is attempted not to be forged into a graveyard of nothingness. China, is at the strike of the bubble, which Trump wished to invigorate as a wound to destroy the economy as a whole (Ward, 2018), Blockchain fell into a veracious burst (Bambrough, 2018) and India overtook Germany. Well, in this paradigm, it is important to determine that economic development is way integral for the society and law cannot ignore its aura by its mere positivist tradition. We know how economic rights can shape up to a larger developmental ecosystem, where we can expect development as a major and hopeful rise. However, the restrictive legal approach has downgraded itself as an institution, yet if not in economics in some hopeful probability.

[Globalism] is an ideology that prioritizes the neoliberal global order over national interests. Nobody can deny that we are living in a globalized world. But whether all of our policies should be “globalist” is highly debatable (Schwab, 2018).

It becomes necessary that economizing and allocating our legal resources is done; but without a prudent approach, it is certainly impossible and radically irrational to proceed without understanding the development of liberalized and not liberal products of globalization. Cyberspace, AI, Blockchain, Social Media (yet nearly all of them are within cyberspace), climate change and privatization of humanitarian entrepreneurship are few of the best products of globalization, where individual attribution has yet formed peaks and plateaus at the legal atmosphere of international life, but failed to manage them and essentialize their values. The materialization of human values, is a sad note in these stages of globalization, ad it gets drastic when privatization is isolationist and globalism is idolatry. We have to determine it in the matrices of legal artefacts for the future of mankind that how, whether is it prudent enough to proceed with the relevant discourses of society that exist.

“To put the matter simply, we could not consider that a State [. . .] is free to disregard the law because it conflicts with the policies of that State (Schindler, 1982, p. 26).”

In that scenario, it is a need we resemble the principles of philosophy of entrepreneurship and innovation not limited to management and resemble them in the fabric of jurisprudence. It may turn out to be an academic recourse, but yes, it is.

Scope of Jurisprudential Entrepreneurship: Conclusions Is it viable to think of entrepreneurship in law? Yes, it is an academic and practical possibility. It is not a compromise, but a resilience. There are some issues in law, in different fields, which can be dealt with as a reformation, engineering and development in synthetic jurisprudence.


Here is a non-exhaustive list of preferences, which are appreciated if regarded.

  • Emotions and International Law [in public international law and IHRL]

  • Climate Change and Development Law [in international environmental law (IEL)]

  • Chinese International Law [since the declaration of the Chinese role in International Law in 2014]

  • Artificial Intelligence and International Law [in international cyber law]

  • Responsibility to Protect [in IHL, IHRL, IRL, UN Law, pure international law and international criminal law]

  • Censorship Law and Ecosystem of Private Defence [in private international law]

  • Law of and on Blockchain [international cyber law, private international law]

  • Comparative Constitutional Anthropology [in private international law, comparative constitutional law]

  • Immaterial and Real Discourses of Human Rights in Overlapping Between Cyberspace and real human space [in IHRL and public international law]

Yet by yet, it is a beginning, where we are seeing the existence of some realms of international law (public and private), which have a significant role for the human society. Hope works. It is necessary that approach works in consonance as well.


Bibliography

  • Balkin, J. M. (2011). Constitutional Redemption. Cambridge: Harvard University Press. Bambrough, B. (2018, December 6). Bitcoin Falls To Fresh Yearly Lows After Wild Swings -- Here's Why. Retrieved from Forbes: https://www.forbes.com/sites/billybambrough/2018/12/06/bitcoin-falls-to-fresh-yearly-lows-after-wild-swings-heres-why/#4169879a77f4

  • Evans, T. (2005). International Human Rights as Power/Knowledge. Human Rights Quarterly, 27(3), 1046-1068.

  • Kelsen, H. (2009). Pure Theory of Law. Clark, New Jersey: University of California Press. Mehren, V., & Taylor, A. (2002). The foundations and emergence of jurisdictional theory. In Collected Courses of the Hague Academy of International Law (Vol. 295). The Hague Academy of International Law.

  • Nilsson, A. (2017). Personality Rights, Defamation and the Internet: Considerations of private international law. Retrieved from Faculty of Law, Lund University: http://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=8909002&fileOId=8921940 Schindler, D. (1982). Contribution a` l’e´tat des facteurs sociologiques et psychologiques du droit international.

  • Schwab, K. (2018, November 5). Globalization 4.0 – what it means and how it could benefit us all. Retrieved from World Economic Forum: https://www.weforum.org/agenda/2018/11/globalization-4-what-does-it-mean-how-it-will-benefit-everyone/

  • Ward, A. (2018, December 12). Everyone warns of China’s rise. But its decline could be even worse. Retrieved from Vox: https://www.vox.com/world/2018/12/12/18137363/china-rise-decline-usa-xi-trump


Footnotes

[1] [It] is not solely a technicality of a legal order that automatically allocates the adjudicatory authority to the courts seised, but rather it reflects and gives effect to several broad considerations, interests and preferences of the legislator, the litigants and the courts. It implies a selection of law applicable to the procedural and substantive issues of the [controversies] (Nilsson, 2017, p. 6; Mehren & Taylor, 2002, p. 22 ff). Refer Cf. Justice Holmes, as cited.


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