341 results
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2. Permissions, Principles and Rights. A Paper on Statements Expressing Constitutional Liberties
- Author
-
Manuel Atienza and Juan Ruiz Manero
- Subjects
Action (philosophy) ,Political science ,Law - Abstract
In the first part of the paper the authors analyze how the distinction between mandatory rules, principles in the strict sense and policies can be understood in structural terms and in terms of reason for action. In the second part, they attempt to clarify which kind of legal provisions embrace constitutional statements recognizing liberty rights are.
- Published
- 1996
3. The Public Interest: Clarifying a Legal Concept.
- Author
-
Boot, Eric R.
- Subjects
- *
PUBLIC interest , *LAW , *JURISDICTION , *PUBLIC welfare , *LAW periodicals - Abstract
Appeals to the public interest in law are commonplace, but typically made without clarifying what the public interest is and how it can be determined. In law, this has led to ad hoc applications of the public interest and, consequently, to "judicial idiosyncrasy," posing a threat to legal certainty. This paper aims to remedy these problems by providing much‐needed conceptual clarification. It proposes that something is in the public interest if it increases the opportunities of the members of the public to pursue and realize the (permissible) ends they all share qua equal members of the public. [ABSTRACT FROM AUTHOR]
- Published
- 2024
- Full Text
- View/download PDF
4. Legal Interpretation, Conceptual Ethics, and Alternative Legal Concepts.
- Author
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Plunkett, David
- Subjects
- *
JURISPRUDENCE , *JUDGES , *ARGUMENT , *ETHICS , *LAW - Abstract
When legal theorists ask questions about legal interpretation—such as what it fundamentally is, what it aims at, or how it should work—they often do so in ways closely tethered to existing legal practice. For example: they try to understand how an activity legal actors (purportedly) already engage in should be done better, such as how judges can better learn about the content of the law. In this paper, I discuss a certain kind of "conceptual ethics" approach to thinking about legal interpretation, which is less tethered to existing legal practice (or the existing meaning of core pieces of legal terminology). The approach I explore asks questions about legal interpretation in a way that is tethered to what legal (or "legal‐ish") concepts people should deploy, as part of arguments on behalf of engaging in legal (or "legal‐ish") practices different from our current ones. In exploring this approach, I aim to help us better understand the landscape of philosophical issues about legal interpretation, including parts of it that I think have been underexplored. [ABSTRACT FROM AUTHOR]
- Published
- 2023
- Full Text
- View/download PDF
5. A Pluralistic Virtue‐Centered Theory of Judging.
- Author
-
Bassham, Gregory and Ostrowski, Olivia
- Subjects
JURISPRUDENCE ,ETHICS ,LAW ,ARISTOTELIANISM (Philosophy) - Abstract
Though first proposed more than two decades ago, virtue jurisprudence—broadly, the attempt to apply the insights and perspectives of virtue ethics to law and legal theory—has failed to gain much traction in the legal academy. This is partly due, we suggest, to the dominance of traditionalist neo‐Aristotelian approaches to virtue jurisprudence—most notably in the work of Lawrence Solum, the most prominent theoretical architect and defender of virtue jurisprudence. In this paper, we sketch in broad strokes an alternative form of virtue jurisprudence—a pluralistic virtue‐centered approach—and explain how it might work, particularly in the field of constitutional adjudication. Such an approach, we argue, has major advantages over prevailing neo‐Aristotelian models, and may well have wider appeal. [ABSTRACT FROM AUTHOR]
- Published
- 2022
- Full Text
- View/download PDF
6. The Limits of the Law.
- Subjects
LAW ,AUTONOMY (Economics) ,JUSTICE administration ,NARRATIVES ,METAPHOR - Abstract
This paper scrutinizes the notion of the limits of the law by contrasting the narrative of the autonomy and independence of legal systems with the alternative narratives the law itself can acknowledge. If the limits of the law can dwell in this acknowledgment of alternative narratives, such limits will turn out to be neither reassuring borders nor protective walls. In the interstitial spaces between narratives may dwell a notion of limits of the law that probably cannot be captured by any geographic‐border metaphor. [ABSTRACT FROM AUTHOR]
- Published
- 2022
- Full Text
- View/download PDF
7. Announcements.
- Subjects
LAW - Abstract
Announces law-related activities, as of March 1999. Master's degree in legal theory offered by the European Academy of Legal Theory in Brussels; Celebration of legal philosopher Alf Ross' birthday; World congress on legal theory in New York.
- Published
- 1999
- Full Text
- View/download PDF
8. Can There Be an Artifact Theory of Law?
- Author
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Burazin, Luka
- Subjects
LAW firms ,JUSTICE administration ,LAW ,INQUIRY (Theory of knowledge) ,LEGAL professions - Abstract
The idea that particular legal institutions are artifacts is not new. However, the idea that the 'law' or 'legal system' is itself an artifact has seldom been directly put forward, due perhaps to the ambiguities surrounding philosophical inquiries into law. Nevertheless, such an idea has recently been invoked more often, though not always developed in detail in terms of what the characterization of the 'law' or 'legal system' as an artifact entails ontologically, and what consequences, if any, this has for philosophical accounts of law. As a result, the primary aim of this paper is to attempt an inquiry into what the claim that 'law' by its nature or character is an artifact entails, and what an artifact theory of law might look like. [ABSTRACT FROM AUTHOR]
- Published
- 2016
- Full Text
- View/download PDF
9. The Mythology of Human Rights.
- Author
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Beck, Gunnar
- Subjects
HUMAN rights ,STATUS (Law) ,DEMOCRACY ,JUSTIFICATION (Theory of knowledge) ,PLURALISM ,JURISDICTION (International law) ,PROTECTIONISM ,LEGISLATION ,POLITICAL philosophy ,LAW - Abstract
A special legal status is accorded to human rights within Western liberal democracies: They enjoy a priority over other human goods and are not subjected to the majoritarian principle. The underlying assumption—the idea that there are some human values that deserve special protection—implies the need for both a normative and a conceptual justification. This paper claims that neither can be provided. The normative justification is needed to support the priority of human rights over other human goods and to rank and balance conflicting human rights, but it can't be provided because of the fact of pervasive value pluralism, the fact that human values are many, incompatible and incommensurable. The conceptual justification is needed to avoid arbitrariness in the interpretation of human rights at the adjudication stage. Such a justification is impossible, however, as the concept of human rights, and the concepts used to justify them and to solve their conflicts are “essentially contested concepts.” The paper concludes that, provided that the interpretation of human rights presupposes value judgements and political choices, the special legal status accorded to human rights is not justified. [ABSTRACT FROM AUTHOR]
- Published
- 2008
- Full Text
- View/download PDF
10. The Sheffield School and Discourse Theory: Divergences and Similarities in Legal Idealism/Anti-Positivism.
- Author
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Clucas, Bev
- Subjects
JURISPRUDENCE ,IDEALISM ,POSITIVISM ,LAW ,ETHICS ,JUSTICE ,MORAL judgment - Abstract
When first I began this paper, I envisaged it as a fairly straightforward exercise in comparison between the Sheffield School’s and Discourse Theory’s varieties of legal idealism or anti-positivism (these terms being synonymous for the types of theory that contest positivism’s separation thesis, that is, the contention that there is no necessary conceptual connection between law and morality). One obvious distinction, for example, is between the moral substance at the heart of these respective theories: the Sheffield School’s legal theory being founded on Alan Gewirth’s Principle of Generic Consistency, and Alexy’s theory focusing on Radbruch’s intolerable degree of injustice. However, the more I thought about the two respective theories, the more interested I became in one particular issue: the denial of the separation thesis that constitutes legal idealism. Here, I present a paper which is not so much concerned with the substance of two different types of legal idealism or anti-positivism, but which focuses on the question of whether and in what way either or both of the theories can correctly be characterised as legal idealist or anti-positivist. I focus in this paper on two works in particular: Deryck Beyleveld and Roger Brownsword’s Law as a Moral Judgment (1994), and Robert Alexy’s The Argument from Injustice (2002). [ABSTRACT FROM AUTHOR]
- Published
- 2006
- Full Text
- View/download PDF
11. Legitimacy for a Supranational European Political Order—Derivative, Regulatory or Deliberative?
- Author
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La Torre, Massimo
- Subjects
SUPRANATIONALISM ,LAW ,RULE of law - Abstract
This paper discusses some models purported to legitimise a European supranational legal order. In particular, the author focuses on an application of the so-called regulatory model to the complex structure of the European Community and the European Union. First of all, he tackles the very concept of legitimacy, contrasting it with both efficacy and efficiency. Secondly, he summarises the most prominent positions in the long-standing debate on the sources of legitimation for the European Community. Thirdly, in this perspective, he analyses several, sometimes contradictory, notions of the rule of law. His contention is that we can single out five fundamental notions of the rule of law and that some but not all of them are incompatible with or oppose democracy. Finally, the paper addresses the regulatory model as a possible application of the rule of the law to the European supranational order. The conclusion is that the regulatory model should be rejected if it is presented as an alternative to classical democratic thought, though it might be fruitful if reshaped differently and no longer assessed from a functionalist standpoint of deliberation.** [ABSTRACT FROM AUTHOR]
- Published
- 2002
- Full Text
- View/download PDF
12. Law, Morals and Defeasibility.
- Author
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Hage, Jaap and Peczenik, Aleksander
- Subjects
LAW ,CONDUCT of life - Abstract
This paper gives a logical characterization of the interrelation between law and morals. To this purpose it first outlines a logic for defeasible reasoning with rules and principles and illustrates the operation of this logic in the field of law. Then it offers a brief argument why law and morals are interrelated. This paper ends by showing how the logic for defeasible reasoning provides tools to logically characterize some aspects of the interrelation between law and morals. [ABSTRACT FROM AUTHOR]
- Published
- 2000
- Full Text
- View/download PDF
13. The Special Case Thesis. An Assessment of R. Alexy's Discursive Theory of Law*.
- Author
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Pavlakos, Georgios
- Subjects
LAW ,FORENSIC orations - Abstract
Legal Argumentation Theories seek mainly to develop procedures, criteria and principles which can guarantee a proper justification of legal propositions within modern legal systems. In doing this, those theories solicit in general an interconnection between practical reasoning and legal reasoning. This paper refers mainly to what seems currently to be the most elaborate theory of legal argumentation, that is R. Alexy's Theorie der juristischen Argumentation. Although the discussion is mainly concentrated on critical points of R. Alexy's theory, this paper's scope is slightly broader; it attempts to present an overall view of the current discursive theory of law. This is mainly performed through the critical examination of R. Alexy's Special Case Thesis, which seems to raise a handful of counter arguments on behalf of the other proponents of Legal Argumentation. In the first part the special case thesis is presented, as well as the main objections to it. In the second part the validity of the special case thesis is checked against K. Günther's model of practical discourse, which proves to be more elaborate in certain points, when compared with the corresponding model of R. Alexy. In the third part it is shown that the special case thesis can be accepted consistently only if it is combined with a normative theory of law that advocates the interconnection of the concept of law with the idea of right morality. It is further suggested that legal discourse has to be perceived as a special case of a broader moral-political discourse that “explains” or “justifies” (morally) the various restrictions that the positive legal systems impose on the legal discourse. [ABSTRACT FROM AUTHOR]
- Published
- 1998
- Full Text
- View/download PDF
14. A Bayesian Improvement of the Proportionality Principle
- Author
-
Pečarič, Mirko
- Subjects
udc:34 ,legal reasoning ,pravo ,the Bayesian approach ,improvements ,izboljšave ,načelo sorazmernosti ,the principle of proportionality ,Bayesov pristop ,law ,pravno sklepanje ,Law - Abstract
The principle of proportionality is seen as the highest peak of structural, logical thinking that enables balancing between constitutional principles and their interferences. So far, Alexy's weight formula has been the most advanced approach in structured balancing of proportionality stricto sensu, while this paper shows it as still too subjective. Despite judicial tests—or different, manifestly inappropriate reasonableness tests—proportionality stricto sensu hides some form of the jumping-to-conclusions bias, because the inference is made through a subjective lens. The paper presents structured legal balancing (and hence reasoning) based on Bayes’ theorem. This paper, based on the connection between probability and hypothetical legal norms, transfers the four-part structure of proportionality into the relevant four-part structure of the Bayes tree. This transfer shows the first as flawed due to its failing to consider means that can have the same effects as the considered ones. Only by inclusion of the latter can the total probability of a considered case be established. Numerical proportionality à la Bayes can be further improved through the use of public-value weights that are obtained from surveys or online communities of people giving weights in the real time (collective wisdom). The Bayesian approach can also be used in adjudication as a control in assessing judicial standards in use.
- Published
- 2022
15. How Rights Became 'Subjective'.
- Author
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Mautner, Thomas
- Subjects
SUBJECTIVITY ,RIGHTS ,LAW ,LAWYERS - Abstract
What is commonly called a right has since about 1980 increasingly come to be called a subjective right. In this paper the origin and rise of this solecism is investigated. Its use can result in a lack of clarity and even confusion. Some aspects of rights-concepts and their history are also discussed. A brief postscript introduces Leibniz's Razor. [ABSTRACT FROM AUTHOR]
- Published
- 2013
- Full Text
- View/download PDF
16. When Is a Regime Not a Legal System? Alexy on Moral Correctness and Social Efficacy When Is a Regime Not a Legal System? Alexy on Moral Correctness and Social Efficacy.
- Author
-
McIlroy, David H.
- Subjects
FAIRNESS ,LAW ,VIOLENCE ,HEADS of state ,RULES - Abstract
Robert Alexy defines law as including a claim to moral correctness and demonstrating social efficacy. This paper argues that law's social efficacy is not merely an observable fact but is undergirded by moral commitments by rulers that it is possible for their subjects to follow the rules, that the rulers and others will also follow the rules, that subjects will be protected from violence if they act in accordance with the rules, and that subjects will be entitled to legal redress if others act violently towards them otherwise than in accordance with the rules. Alexy is correct in his conclusion that a system of norms that is not by and large socially efficacious is not a valid legal system, but wrong insofar as he follows legal positivism in distinguishing this aspect of law's validity from law's claim to moral correctness. [ABSTRACT FROM AUTHOR]
- Published
- 2013
- Full Text
- View/download PDF
17. Norm Enactment and Performative Contradictions.
- Author
-
ROTOLO, ANTONINO and ROVERSI, CORRADO
- Subjects
- *
NORMATIVITY (Ethics) , *NORM (Philosophy) , *PHILOSOPHY , *LEGAL professions , *LAW - Abstract
In this paper we investigate the role of performative contradictions in legal discourse. First of all we identify the argumentative roles of performative contradictions and two possible interpretations of them. With this done, we show that one use of performative contradictions can be fruitfully applied in analysing normative speech acts implementing norm enactment, namely, those speech acts that are designed to produce new legal norms. We conclude the paper by showing that our analysis provides strong support for Robert Alexy's claim-to-correctness thesis, according to which speech acts of the norm-enacting kind raise a claim to correctness. [ABSTRACT FROM AUTHOR]
- Published
- 2009
- Full Text
- View/download PDF
18. The Pluralistic Universe of Law: Towards a Neo-Classical Legal Pragmatism.
- Author
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HAACK, SUSAN
- Subjects
LEGAL pluralism ,PLURALISM ,JURISPRUDENCE ,PRAGMATISM ,JUSTICE administration ,LAW ,ETHICS ,PHILOSOPHY - Abstract
After a brief sketch of the history of philosophical pragmatism generally, and of legal pragmatism specifically (section 1), this paper develops a new, neo-classical legal pragmatism: a theory of law drawing in part on Holmes, but also on ideas from the classical pragmatist tradition in philosophy. Main themes are the “pluralistic universe” of law (section 2); the evolution of legal systems (section 3); the place of logic in the law (section 4); and the relation of law and morality (section 5). [ABSTRACT FROM AUTHOR]
- Published
- 2008
- Full Text
- View/download PDF
19. The Strategic Use of Formal Argumentation in Legal Decisions.
- Author
-
KLOOSTERHUIS, HARM
- Subjects
FORENSIC orations ,LAW ,DEBATE ,AUTHORITY ,TRIAL practice ,ORAL pleading - Abstract
In legal decisions standpoints can be supported by formal and also by substantive interpretative arguments. Formal arguments consist of reasons the weight or force of which is essentially dependent on the authoritativeness that the reasons may also have: In this connection one may think of linguistic and systemic arguments. On the other hand, substantive arguments are not backed up by authority, but consist of a direct invocation of moral, political, economic, or other social considerations. Formal arguments can be analyzed as exclusionary reasons: The authoritative character excludes—in principle—substantial counterarguments. Formal arguments are sometimes used to conceal value judgements based on substantial arguments. This paper deals with reconstructing problems regarding this strategic use of formal arguments in legal decisions, with a focus on linguistic argumentation. [ABSTRACT FROM AUTHOR]
- Published
- 2008
- Full Text
- View/download PDF
20. Hans Kelsen's Normativist Reductionism.
- Author
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Pattaro, Enrico
- Subjects
REDUCTIONISM ,NORMATIVITY (Ethics) ,NORM (Philosophy) ,LEGAL rights ,LAW ,RIGHTS ,CIVIL rights ,ETHICS ,PHILOSOPHY - Abstract
This paper discusses Kelsen's attempt at reducing the concept of subjektives Recht (what is subjectively right) to that of objektives Recht (what is objectively right). This attempt fails, it is argued, because in Kelsen's theory the concept of subjektives Recht survives concealed within the concept of individual norm ( individuelle Norm), a norm that, pace Kelsen, is not a case of what is objectively right ( objektives Recht) but is precisely what is subjectively right ( subjektives Recht): We could call it “what is individually right.” [ABSTRACT FROM AUTHOR]
- Published
- 2008
- Full Text
- View/download PDF
21. On Legal Inferentialism. Toward a Pragmatics of Semantic Content in Legal Interpretation?
- Author
-
CANALE, DAMIANO and TUZET, GIOVANNI
- Subjects
PRAGMATICS ,SEMANTICS (Philosophy) ,SEMANTICS (Law) ,MODERN philosophy ,LOGICAL positivism ,LAW - Abstract
In this paper we consider whether a pragmatics of semantic content can be a useful approach to legal interpretation. More broadly speaking, since a pragmatic conception of meaning is a component of inferential semantics, we consider whether an inferentialist approach to legal interpretation can be useful in dealing with some problems of this important aspect of law. In other words, we ask whether Legal Inferentialism is a suitable conception for legal interpretation. In Section 1 we briefly consider the semantics/pragmatics debate in contemporary philosophy of language and in relation to legal interpretation. In Section 2 we discuss the relations between a pragmatics of semantic content and an inferentialist conception of content. In Section 3 we consider how Inferentialism can be applied to legal interpretation. Finally, in Section 4 we consider some possible advantages and drawbacks of Inferentialism applied to legal interpretation and adjudication. [ABSTRACT FROM AUTHOR]
- Published
- 2007
- Full Text
- View/download PDF
22. On Two Distinct and Opposing Versions of Natural Law: “Exclusive” versus “Inclusive”.
- Author
-
La Torre, Massimo
- Subjects
NATURAL law ,JURISPRUDENCE ,LAW ,REALISM ,RATIONALISM ,MODERN philosophy - Abstract
This paper takes the dichotomy between “exclusive” and “inclusive” positivism and applies it by analogy to natural-law theories. With John Finnis, and with Beyleved and Brownsword, we have examples of “ exclusive natural-law theory,” on which approach the law is valid only if its content satisfies a normative monological moral theory. The discourse theories of Alexy and Habermas are seen instead as “ inclusive natural-law theories,” in which the positive law is a constitutive moment in that it identifies moral rules and specifies their meaning. The article argues that inclusive theories of natural law are better suited to expressing an authentic “republican” attitude. * [ABSTRACT FROM AUTHOR]
- Published
- 2006
- Full Text
- View/download PDF
23. The Concept of Law and Its Conceptions.
- Author
-
Koller, Pete
- Subjects
JURISPRUDENCE ,LEGAL positivism ,RATIONALISM ,LAW ,MODERN philosophy ,REALISM - Abstract
In this paper, I make an attempt to look for a thin and general concept of law that, as far as possible, should be neutral to the more substantial views of legal moralism and legal positivism, so that it is acceptable from both points of view. With this aim in view, I shall begin with a few remarks on concept formation and name a list of necessary requirements on an appropriate concept of law. On this basis, I intend to discuss a number of contemporary legal theories in view to their respective interpretations of the concept of law. Finally, I want to propose a definition of law that not only satisfies the requirements of the concept of law, but is also general enough to be compatible with both camps of legal thinking. [ABSTRACT FROM AUTHOR]
- Published
- 2006
- Full Text
- View/download PDF
24. An Automated System for Argument Invention in Law Using Argumentation and Heuristic Search Procedures.
- Author
-
WALTON, DOUGLAS
- Subjects
FORENSIC orations ,ORAL pleading ,LAW ,HEURISTIC ,LEGAL procedure - Abstract
A heuristic search procedure for inventing legal arguments is built on two tools already widely in use in argumentation. Argumentation schemes are forms of argument representing premise-conclusion and inference structures of common types of arguments. Schemes especially useful in law represent defeasible arguments, like argument from expert opinion. Argument diagramming is a visualization tool used to display a chain of connected arguments linked together. One such tool, Araucaria, available free at , helps a user display an argument on the computer screen as an inverted tree structure with an ultimate conclusion as the root of the tree. These argumentation tools are applicable to analyzing a mass of evidence in a case at trial, in a manner already known in law using heuristic methods ( Schum 1994 ) and Wigmore diagrams ( Wigmore 1931 ). In this paper it is shown how they can be automated and applied to the task of inventing legal arguments. One important application is to proof construction in trial preparation ( Palmer 2003 ). [ABSTRACT FROM AUTHOR]
- Published
- 2005
- Full Text
- View/download PDF
25. On Giving Legal Form Its Due. A Study in Legal Theory.
- Author
-
Summers, Robert S.
- Subjects
JUSTICE administration ,STATUTES ,LEGISLATION ,FORMS (Law) ,LEGAL remedies ,LAW - Abstract
The four theses of this paper are: (1) that an appropriate organizational form is used to design, define, and organize a functional unit of a legal system, (2) that the functional units of a legal system, contrary to the emphasis in Hart and Kelsen, consist of far more than rules, and include institutions, interpretive and other methodologies, sanctions and remedies, and more, (3) that frontal and systematic study of the forms of these units is a major avenue for advancing understanding of them as duly organized wholes, and, (4) that such study reveals that much credit is due these forms, along with complementary material or other components of the units, for values realized through law. [ABSTRACT FROM AUTHOR]
- Published
- 2005
- Full Text
- View/download PDF
26. Facts, Fictions or Reasoning. Law as the Subject Matter of Jurisprudence.
- Author
-
Niemi, Matti Ilmari
- Subjects
LAW ,THEORY of knowledge - Abstract
This paper deals with the problems involved in the concept of knowledge in the sphere of law. Traditionally, the idea of knowledge has dealt with the presumption of given objects of information. According to this approach, knowing means finding these objects. This is the natural and understandable foundation of metaphysical or philosophical realism. Cognition and cognitive interest are directed outside the sentences by which they are described. This is the point of departure of legal positivism as well. However, it is not possible to see valid law as totally independent of language and concepts. This makes the idea of legal facts as institutional facts vague. From a practical viewpoint, the sentences of judges and legal scholars, when they present valid law, justify rather than describe. Their crucial function is interpretation. Hence, the objectivity of these sentences cannot be based on the presumption of separate objects either. Instead, it has to be based on the principles of acceptable reasoning. Moreover, the author claims that this kind of approach, united with the utilization of human rights and substantial legal principles, leads one to acknowledge objective values. [ABSTRACT FROM AUTHOR]
- Published
- 2003
- Full Text
- View/download PDF
27. Lawyers' Professional Ethics—Do They Exist?
- Author
-
Aarnio, Aulis
- Subjects
LAW ,SOCIAL norms ,ETHICS - Abstract
The author's aim is to prove that certain moral principles will always be etched into laws when the interest of society demands it and when morality as a set of norms guiding behavior no longer functions in an expected manner outside the system of law. In this paper, it is argued that morality is constituted within the law in a more profound way as well as in a way which is also much more difficult to identify than, for example, conventional instructions concerning professional ethics may indicate. The main thesis is that de facto there are no particular professional ethics of lawyers beyond or above the ethical principles binding all people. [ABSTRACT FROM AUTHOR]
- Published
- 2001
- Full Text
- View/download PDF
28. Justification as a Process of Discovery.
- Author
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Halttunen, Rauno
- Subjects
LAW ,DECISION making - Abstract
Legal decision-making interests theoreticians in our discipline largely in terms of how a legal decision is justified. In his book, Bruce Anderson (1996) has posited a distinction between how a decision is arrived at, on one hand, and how it is justified, on the other. Anderson seems to be suggesting that legal theory should set out to continue the work of the American realists, that is, to develop legal decision-making as a process of discovery towards a solution. In my presentation, I will be looking at legal decision-making as a process of finding or discovering knowledge. What I mean by “discovery,” however, is the discovery of new scientific knowledge. (The theory of science draws a distinction between proving and discovering knowledge.) I submit that for a justification to be valid the arguments comprising it ought to fulfill the logical conditions stipulated for the discovery of knowledge. In the present paper, I also hope to share with you the main ideas of a book I am currently writing on the subject. [ABSTRACT FROM AUTHOR]
- Published
- 2000
- Full Text
- View/download PDF
29. An Algebraic Analysis of Normative Systems.
- Author
-
Lindahl, Lars and Odelstad, Jan
- Subjects
NORMATIVITY (Ethics) ,LAW - Abstract
In the present paper we study how subsystems of a normative system can be combined, and the role of such combinations for the understanding of hypothetical legal consequences. A combination of two subsystems is often accomplished by a normative correlation or an intermediate concept. To obtain a detailed analysis of such phenomena we use an algebraic framework. Normative systems are represented as algebraic structures over sets of conditions. This representation makes it possible to study normative systems using an extension of the theory of Boolean algebras, called the theory of Boolean quasi-orderings. [ABSTRACT FROM AUTHOR]
- Published
- 2000
- Full Text
- View/download PDF
30. Alexy's Thesis of the Necessary Connection between Law and Morality*.
- Author
-
Bulygin, Eugenio
- Subjects
LAW ,ETHICS - Abstract
This paper criticizes Alexy's argument on the necessary connection between law and morality. First of all, the author discusses some aspects of the notion of the claim to correctness. Basically, it is highly doubtful that all legal authorities share the same idea of moral correctness. Secondly, the author argues that the claim to correctness is not a defining characteristic of the concepts of “legal norm” and “legal system”. Hence, the thesis of a necessary connection between law and morality based on such claim cannot be accepted.** [ABSTRACT FROM AUTHOR]
- Published
- 2000
- Full Text
- View/download PDF
31. Scarcity, Discourses of Implementation, and Habermasian Law and Democracy*.
- Author
-
Avio, Kenneth L.
- Subjects
LECTURES & lecturing ,LAW - Abstract
This paper contains a critique of Habermas' discourse theory of law and democracy from an economic perspective. An example drawn from Klaus Günther's work on discourses of application suggests the failure of discourse ethics to adequately account for the problem of scarcity. This blindpoint is reflected in Habermas' legal theory through the latter's inadequate recognition of the internal connection between markets and law. Discourses of implementation are introduced as a discourse-relevant procedure to account for the problem of scarcity. Consensus, as defined by Habermas, cannot be the agreement mode applicable to discourses of implementation. [ABSTRACT FROM AUTHOR]
- Published
- 2000
- Full Text
- View/download PDF
32. Legal Validity, Acceptance of Law, Legitimacy. Some Critical Comments and Constructive Proposals.
- Author
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Weinberger, Ota
- Subjects
LAW ,SOVEREIGNTY ,HUMAN rights - Abstract
In this paper the author first presents a critical account of some basic views of Habermas' Discourse Philosophy. He points out some difficulties inherent in notions such as valid justification in argumentation theory, in the notion of ideal form of discourses, and in consensus theory of truth. Secondly, he focuses on Habermas' conceptions of validity, acceptance and legitimacy of law from the perspective of neo-institutionalism. In particular, (i) the author argues that Habermas' definition of legal validity is unclear and unrealistic; (ii) the author stresses the distinction between acceptance and acceptability; (iii) Habermas presupposes harmony between sovereignty and human rights postulates, but the present author takes into account the possibility of conflicts between autonomous popular decisions and human rights which must be resolved by methods of discursive democracy; (iv) criteria for acceptance of law cannot be fixed by a stipulative definition, but are in social discussion; (v) legitimacy is not an objective feature of valid law and presupposes an evaluation based on our political convictions.* [ABSTRACT FROM AUTHOR]
- Published
- 1999
- Full Text
- View/download PDF
33. Free Market Anti-Formalism: The Case of Richard Posner.
- Author
-
Scheuerman, William E.
- Subjects
LAW ,ECONOMICS - Abstract
This paper analyses the impact of the Law and Economics movement on legal decision making. Focussing on the position of the leading intellectual figure of this movement, Richard Posner, the author shows how his theories imply a silent revolution in American jurisprudence. Starting from the criteria of economic efficiency and wealth maximization, seen in the light of American pragmatism, Posner upholds anti-formalist interpretation of statutor law by judges based on the principles of free market economics. His theory starts from the assumption that statutor law has become more and more ambiguous and open-ended and thus, as in the case of antitrust law, judges can freely interpret legal provisions on the basis of free market postulates. This position has broader implications in the debate about the meaning of the rule of law: Posner's position implies abandoning the emancipatory core of the liberal tradition.** [ABSTRACT FROM AUTHOR]
- Published
- 1999
- Full Text
- View/download PDF
34. Political Unhappiness.
- Author
-
Zanetti, Gianfrancesco
- Subjects
POLITICAL autonomy ,LAW - Abstract
The starting point of this paper is the idea of individual autonomy: Autonomy from the social body and from its influences, i.e., broadly speaking, autonomy from the “whole” of which the individual is a part. In particular, I shall address some of the problems arising out of the relations between the whole and its parts, basically problems of law and morality. We are accustomed to thinking that the relation between a particular individual and the universal whole to which the individual belongs should be a happy relationship. Such “happiness,” however, will prove to be—from the liberal perspective here assumed—a problematic notion. From such premises as these, an argument will be developed, on behalf of social recognition and legal protection for out-of-the mainstream forms of behaviour or lifestyles, i.e., for individuals or groups that claim the “otherness” of their position together with a right of freedom from discrimination. [ABSTRACT FROM AUTHOR]
- Published
- 1998
- Full Text
- View/download PDF
35. Equality before the Law and Precedent.
- Author
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Miguel, Alfonso Ruiz
- Subjects
EQUALITY ,LAW - Abstract
The paper explores the nature of the principle of equality before the law, understood as the formal justice criterion that like cases must be treated alike, as a rationale of the rule or system of precedent. The first part discusses and rejects Kelsen's thesis on the conceptual insignificance of that principle in the sphere of the application of the law, identified uniquely with a logical criterion related to generality of rules and simple legality. The second part argues for the ethical relevance of equality before the law as a reason for a legal system to have a rule of defeasibly binding precedent. [ABSTRACT FROM AUTHOR]
- Published
- 1997
- Full Text
- View/download PDF
36. One Myth of the Classical Natural Law Theory: Reflecting on the 'Thin' View of Legal Positivism
- Author
-
Veronica Rodriguez-Blanco and Pilar Zambrano
- Subjects
050502 law ,Natural law ,05 social sciences ,Epistemology ,Legal realism ,Action (philosophy) ,Legal positivism ,Legal formalism ,Intelligibility (philosophy) ,Sociology ,Empirical legal studies ,Law ,Positivism ,0505 law - Abstract
Much controversy has emerged on the demarcation between legal positivism and non-legal positivism with some authors calling for a ban on the -as they see it- nonsensical labelling of legal philosophical debates. We agree with these critics; simplistic labelling cannot replace the work of sophisticated and sound argumentation. In this paper we do not use the term ‘legal positivism’ as a simplistic label but identify a specific position which we consider to be the most appealing and plausible view on legal positivism. This is the view advocated by Gardner in his paper 'Legal Positivism: 5½ Myths’ (Gardner 2001, 199), where he carefully scrutinises the most convincing and unifying postulates of legal positivism, which he calls “the thin view”. The study shows that this thin view presupposes an empirical conception of action that is untenable and implausible since it makes acts of engagement with the law unintelligible to an observer of such acts. The paper is divided into six sections. §1 aims to give an accurate and charitable explanation of Gardner’s thin view of legal positivism, which includes the possibility of recognising actions of engagement with the law that are inert. Section 2 sets the stage for the critical discussion using the example of a fictional country called DYSTOPIA where King Positus promulgates law with the aim of causing chaos in the activities of the citizens. The question we ask is, ‘What enables an imaginary observer to recognise what Gardner calls ‘acts of engagement’ with the law? In order to provide a plausible answer to this question we argue in sections 3 and 4 both that Gardner’s thin conception of legal positivism presupposes an empirical view of human action and that the sound conception of human action cannot be an empirical one. We use what we call Anscombe’s ‘institutional transparency thesis’ defended in ‘On Brute Facts’ (Anscombe 1958, 69) to show that the intelligibility of human action presupposes an institutional context but does not entail a description of that context. In §4 we stay with the example of DYSTOPIA to show that an imaginary observer cannot know whether or not there is a legal system in DYSTOPIA unless he/she understands the purpose of an institution that has already been learned within an institutional context. This conception of action is purposeful as opposed to empirical. §5 argues that the paradigm or central-case methodology, as opposed to the necessary and/or sufficient conditions methodology, used to understand social practices, including law, has at its centre the non-empirical view that human action and its purpose is given rather than discovered. Through this indirect argumentative strategy one myth of classical natural law is therefore dispelled. We argue that classical natural law does not aim to discover through moral facts or moral ideals the suitable ends to the kind of creatures we are, because this is not how ends participate in our practical reasoning and actions. On the contrary, ends are already given and our laws, games, ways of loving, thinking, enjoying and living our lives all aim at better understanding these given ends.
- Published
- 2018
37. Postema and the Common Law Tradition.
- Subjects
ADMINISTRATIVE procedure ,CRITICISM ,COMMON law ,RITES & ceremonies ,LAW - Abstract
First published in 1986, Gerald Postema's pathbreaking and influential Bentham and the Common Law Tradition offered a controversial interpretation of how Bentham sought to combine the certainty of a code with flexibility in adjudication. A second edition of the work came out in 2019, with a significant new Afterword in which Postema addresses some of the criticisms of his interpretation. This article revisits some of Postema's arguments in the book, assesses the Afterword, and considers how his arguments might have been modified in view of other work he has done on the common law mind. [ABSTRACT FROM AUTHOR]
- Published
- 2022
- Full Text
- View/download PDF
38. Bentham as a Theorist of the Rule of Law and His Idea of Universal Interest.
- Subjects
PUBLICITY ,LAW ,CIVIL rights ,ETHICS ,JURISPRUDENCE - Abstract
I will focus on three chapters of Professor Gerald Postema's book Utility, Publicity, and Law: Essays on Bentham's Moral and Legal Philosophy (2019). In these chapters, Postema offered new and compelling interpretations of Bentham's work, such as his notion that Bentham was a theorist of the rule of law. However, it is difficult to assume that the majority would exercise moral sanctions and control legislators when the interests of the minority are violated by some legislation. Relating to this, I will argue that Bentham was a precursor to the modern theorists who tried to design some architecture for democracy. [ABSTRACT FROM AUTHOR]
- Published
- 2022
- Full Text
- View/download PDF
39. The Biological Essence of Law.
- Author
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Gommer, Hendrik
- Subjects
- *
LAW , *BIOLOGICAL evolution , *GENETICS , *PHENOTYPES , *JUSTICE administration , *BIOLOGICAL systems , *NATURAL selection - Abstract
This paper contends that law is in essence an evolutionary phenomenon that can, and indeed should, be studied in the light of biological mechanisms. Law can be seen as an extended phenotype of underlying genes. In addition, legal systems can be seen as congruous to genetic mechanisms. Properties of genes have an impact on legal systems in a fractal-like manner. Hence, it is not surprising that notions of stability, replication, and reciprocity that are important in biological systems will also be important in legal systems. As a result legal systems can be constructed in a way that is congruent with the genetic advantage of group members. Law, exposure, and punishment can diminish deviant behaviour and restore balance. Law may not be particularly subject to natural selection, but it will certainly be built on the foundations of natural selection. [ABSTRACT FROM AUTHOR]
- Published
- 2012
- Full Text
- View/download PDF
40. Dichotomies and Oppositions in Legal Argumentation.
- Author
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MACAGNO, FABRIZIO and WALTON, DOUGLAS
- Subjects
- *
FORENSIC orations , *OPPOSITION (Linguistics) , *LAW , *BINARY principle (Linguistics) , *TRIAL practice - Abstract
In this paper we use a series of examples to show how oppositions and dichotomies are fundamental in legal argumentation, and vitally important to be aware of, because of their twofold nature. On the one hand, they are argument structures underlying various kinds of rational argumentation commonly used in law as a means of getting to the truth in a conflict of opinion under critical discussion by two opposing sides before a tryer of fact. On the other hand, they are argument structures underling moves made in strategic advocacy by both sides that function as platforms for different kinds of questionable argumentation tactics and moves that are in some instances tricky and deceptive. [ABSTRACT FROM AUTHOR]
- Published
- 2010
- Full Text
- View/download PDF
41. Was Inclusive Legal Positivism Founded on a Mistake?
- Author
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SHAPIRO, SCOTT J.
- Subjects
- *
LEGAL positivism , *SOCIAL planning , *LAW , *JURISPRUDENCE - Abstract
In this paper, I present a new argument against inclusive legal positivism. As I show, any theory which permits morality to be a condition on legality cannot account for a core feature of legal activity, namely, that it is an activity of social planning. If the aim of a legal institution is to guide the conduct of the community through plans, it would be self-defeating if the existence of these plans could only be determined through deliberation on the merits. I also argue that, insofar as inclusive legal positivism was developed as a response to Ronald Dworkin's critique of H. L. A. Hart's theory of law, it was founded on a mistake. For once we appreciate the role that planning plays in legal regulation, we will see that Dworkin's objection is based on a flawed conception of legal obligations and rights and hence does not present an objection that inclusive legal positivists were required to answer. [ABSTRACT FROM AUTHOR]
- Published
- 2009
- Full Text
- View/download PDF
42. Legal Arguments from Scholarly Authority
- Author
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Fábio Perin Shecaira
- Subjects
050502 law ,Structure (mathematical logic) ,Feature (linguistics) ,Law ,05 social sciences ,Appeal ,Sociology ,Primary authority ,0505 law ,Argumentation theory - Abstract
Ordinary arguments from authority have the following structure: A says p; A is authoritative on such things; so p. Legal actors use such arguments whenever they ground their decisions on the sheer “say-so” of legislators, judges, scholars, expert witnesses, and so on. This paper focuses on arguments appealing to the authority of scholars, “doctrinal” or “dogmatic” legal scholars in particular. Appeal to doctrinal authority is a puzzling feature of legal argumentation. In what sense are doctrinal scholars “authorities”? Is p, as advanced by a scholar, descriptive or prescriptive? Is scholarly authority grounded on expertise or something different? The paper addresses these questions.
- Published
- 2017
43. From a Pluralism of Grounds to Proto-Legal Relations: Accounting for the Grounds of Obligations of Justice
- Author
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Georgios Pavlakos
- Subjects
media_common.quotation_subject ,05 social sciences ,06 humanities and the arts ,0603 philosophy, ethics and religion ,0506 political science ,Pluralism (political theory) ,Law ,060302 philosophy ,Accountability ,050602 political science & public administration ,Sociology ,Obligation ,Monism ,Duty ,media_common - Abstract
In this paper I discuss critically Mathias Risse's paper “Responsibility and Global Justice.” First, I argue that for Risse's pluralist account of the grounds of justice to hold together, there is need to presuppose a monist standpoint which ultimately contributes to grounding principles of justice. Second, I point out that Risse's understanding of obligations of accountability and justification is rather narrow in that it functions as an addendum to obligations of justice. Conversely, I will suggest that the obligation of accountability plays a deeper role: The conditions that ground it feature at the same time among the grounds of obligations of justice. Accordingly, the kind of relation that gives rise to a duty among agents to account for their actions must be in place when obligations of justice obtain. Following on from these remarks I will adumbrate an alternative account of the relation which grounds (enforceable) obligations of justice.
- Published
- 2017
44. How Kant's View of Perfect and Imperfect Duties Resolves an Alleged Moral Dilemma for Judges.
- Author
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MASEK, LAWRENCE
- Subjects
JUDGES ,LEGAL professions ,COURTS ,JUSTICE administration ,LAW - Abstract
I clarify Kant's classification of duties and criticize the apocryphal tradition that, according to Kant, perfect duties trump imperfect duties. I then use Kant's view to argue that judges who believe that an action is immoral and should be illegal need not set aside their beliefs in order to comply with binding precedents that permit the action. The same view of morality that causes some people to oppose certain actions, including abortion, requires lower–court judges to comply with binding precedents. Therefore, someone's opposition to legal abortion, by itself, does not justify opposing that person's nomination to a lower court. [ABSTRACT FROM AUTHOR]
- Published
- 2005
- Full Text
- View/download PDF
45. NOTES • DISCUSSION • BOOK REVIEWS Rights and Conclusive Reasons.
- Author
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Priel, Danny
- Subjects
- *
REASON , *RIGHTS , *LOGIC , *LAW , *PRIVILEGE (Social sciences) , *ASSERTIONS (Logic) - Abstract
Presents the author's comments on the paper "Epistemic and Legal Rights," by Leif Wenar. Comments on the relationships between assertions of rights and assertions of conclusive reasons; Information about epistemic rights which consist of rights to believe and doubt, and legal rights which consist of various legal relations between legal persons; Comments on the rights of conduct, which besides legal rights consist of moral and customary rights.
- Published
- 2005
- Full Text
- View/download PDF
46. Reliance and Obligation.
- Author
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Black, Oliver
- Subjects
- *
LEGAL judgments , *OBEDIENCE (Law) , *ETHICS , *TORTS , *CRIMINAL law , *LAW - Abstract
The fact that A has relied on B to do something is often taken to be a relevant factor in judging that B has a moral or legal obligation to do that thing. This paper investigates the relation between reliance and obligation. Specifically, the question is whether reliance and moral obligation are connected by some relation of conditionality. I consider four such relations—necessary condition, sufficient condition, necessary part of a sufficient condition, and independent necessary part of a sufficient condition. I argue that only the third one connects reliance and moral obligation, and that it does so in a trivial way. There are nevertheless two justifications for the prominence given to reliance in morality and law. First, reliance appears to be a sufficient condition of states of affairs involving concepts related to obligation. Second, reliance is a fairly reliable indicator of obligation. [ABSTRACT FROM AUTHOR]
- Published
- 2004
- Full Text
- View/download PDF
47. Civil Disobedience and Test Cases.
- Author
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Y Tella, María José Falcón
- Subjects
- *
CIVIL disobedience , *POLITICAL participation , *SOCIAL movements , *PUBLIC demonstrations , *ACTIVISM , *LAW - Abstract
This paper aims to approach the subject of civil disobedience from the triple perspective of the ethical, the legal, and the political. The novelty of our focus resides in the priority given to the legal aspect of civil disobedience, especially to the possible legal justification of civil disobedience, a perspective that is generally overlooked in analysing the phenomenon. This is where the Achilles heel is to be found, though it may provide unexploited insights into the issue from which significant conclusions can be drawn. [ABSTRACT FROM AUTHOR]
- Published
- 2004
- Full Text
- View/download PDF
48. The Legality of Law.
- Author
-
Gardner, John
- Subjects
- *
LAW , *INVESTIGATIONS , *PRACTICE of law , *ANTIQUITIES , *PROPERTY , *LOGIC - Abstract
In this paper I outline various different objects of investigation that may be picked out by word “law” (or its cognates). All of these objects must be investigated in an integrated way before one can provide a complete philosophical explanation of the nature of law. I begin with the distinction between laws (artefacts) and law (the genre to which the artefacts belong). This leads me to the distinction between the law (of a particular legal system) and law (the genre of artefacts). Then I discuss the contrast between law (the genre of artefacts) and law (the practice). Finally I comment on legality as the name of an ideal for laws and legal systems to live up to. I commend H. L. A. Hart's explanation of the nature of law for investigating these various objects in an integraed way, while nevertheless respecting the distinctions among them. I also criticise some of R. M. Dworkin's work for failing to respect the same distinctions. [ABSTRACT FROM AUTHOR]
- Published
- 2004
- Full Text
- View/download PDF
49. Dissent and the Anarchic in Legal Counter-Culture: A Peircean View.
- Author
-
Kevelson, Roberta
- Subjects
LAW ,ANARCHISM - Abstract
The author analyses the role of dissent and anarchic thinking in modern legal culture. Such notions traditionally convey opposition to established authority and are essential for all free and open societies. In fact, the right to dissent and practising anarchic beliefs exist insofar as a true right of confrontation is guaranteed by the legal system. In this perpective, the author suggests some correspondences between dialogic thinking, that Peirce says allows all ideas to grow semiotically, and the development of the role of dissent in the legal culture. Generally speaking, the question concerns the well-known Peircean dichotomy between chance/spontaneity and lawfulness. This thesis is exemplified in detail looking at the history of US law, at its outset the direct consequence of a legal counter-cultural movement against British common law. Moreover, the possibility of dissent is written into the United States constitution. At least three modes of dissent are built into American law as legal counter activities: (1) voices of nondominant religions, (2) dissent within the legal system, e.g., dialogue among and within the courts, (3) challenging the legal system sanctioned by the right to civil disobedience and by other forms of reaction against an oppressive government.** [ABSTRACT FROM AUTHOR]
- Published
- 2002
- Full Text
- View/download PDF
50. Legal Speech and Implicit Content in the Law
- Author
-
Luke William Hunt
- Subjects
050502 law ,Common law ,05 social sciences ,Judicial opinion ,Legislation ,06 humanities and the arts ,0603 philosophy, ethics and religion ,Key issues ,Argument ,Law ,060302 philosophy ,Sociology ,Content (Freudian dream analysis) ,Implicature ,0505 law - Abstract
Interpreting the content of the law is not limited to what a relevant lawmaker utters. This paper examines the extent to which implied and implicit content is part of the law, and specifically whether the Gricean concept of conversational implicature is relevant in determining the content of law. Recent work has focused on how this question relates to acts of legislation. This paper extends the analysis to case law and departs from the literature on several key issues. The paper's argument is based upon two points: (1) Precedent-setting judicial opinions may consist of multiple conversations, of which some entail opposing implicata, and (2) if a particular precedent-setting judicial opinion consists of multiple conversations, of which some entail opposing implicata, then no meaningful conversational implicatum is part of the content of that particular precedent-setting opinion. Nevertheless, the paper's conclusion leaves open the prospect of gleaning something in between conversational implicature and what is literally said, namely, conversational impliciture.
- Published
- 2016
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