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Illegal car racing in German city centres repeatedly lead to fatal accidents. As a rule, they are punished by the courts as involuntary manslaughter. Until a judgement of the Berlin Regional Court makes legal history by convicting the speeders of murder. This requires reasoning. Court judgements are argumentative texts. Against the background of the applicable foundations of law, justice and jurisprudence, this article will take a closer look at two opposing verdicts (in Cologne and Berlin) on the comparable facts of the case, one assessed as negligent homicide, the other as murder, using the linguistic and argumentationanalytical cutlery from the toolbox of forensic linguistics.

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Critics of legal positivism claim that this doctrine is no longer adequate to formulate answers to contemporary problems inherent of constitutionalism. This alleged decline of legal positivism has created a space to a neo-constitutionalist discourse, which has experimented great acceptance among constitutional law scholars, lawyers and judges. Given such critical formulations, the objective of this paper is to delineate a specific profile of legal positivism – in a neo-Kantian perspective – and discuss possible contributions and limitations set to address problems faced in contemporary constitutional jurisdiction.

The paper discusses the relationship between Marx's philosophy and the rule of law. The classical viewof Marxism and the rule of law tells us that these are opposite notions. In this paper, the author presentsdifferent views in the context of the relationship between Marx's philosophy and the rule of law inrelation to the classical Marxist view of the rule of law. Also, the author in this paper shows that Marx'sunderstanding of the rule of law does not necessarily contradict the modern concept of the rule of law,and also, Marx's understanding of the rule of law is related to the problem of building the rule of law inBosnia and Herzegovina. The author conveys Marx's critique of 'law' as a critique of the process ofbuilding the rule of law in Bosnia and Herzegovina. In addition, the author shows that Marx's critiqueof 'law' is not necessarily an obstacle to the implementation of the modern concept of the rule of law

Copyright of German as a Foreign Language is the property of German as a Foreign Language and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Customary land tenure is normally not based on codified or statutory sources, but stems from customary traditions and norms. When westernised courts have to interpret and adjudicate these customary traditions and norms, the normal rules of statutory interpretation cannot be followed. The court has to rely on evidence of the traditional values of land use to determine the rules connected to land tenure.Previously courts in many mixed jurisdictions relied on common or civil law legal principles to determine the nature of customary land tenure and lay down the principles to adjudicate customary land disputes among traditional communities, or between traditional and westernised communities in the same jurisdiction. Many examples of such westernised approach can be found in case law of Canada and South Africa. The interpretation of the nature of customary land tenure according to common law or civil law principles has been increasingly rejected by higher courts in South Africa and Canada, e.g. in Alexkor Ltd v The Richtersveld Community 2004 5 SA 469 (CC) and Delgamuukw v British Columbia 1997 3 SCR 1010. This paper explores the methodology the courts should follow to determine what the distinctive nature of customary land tenure is. As customary land tenure is not codified or based on legislation, the court has to rely, in addition to the evidence of indigenous peoples, on the expert evidence of anthropologists and sociologists in determining the nature of aboriginal title (in Canada) and indigenous land tenure (in South Africa). The court must approach the rules of evidence and interpret the evidence with a consciousness of the special nature of aboriginal claims and the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in. The court must not undervalue the evidence presented simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law tort case.

O tema do respeito à legalidade sempre serviu como ponto de acusação aos adversários do Positivismo Jurídico. O presente artigo objetiva investigar o tema da obediência às leis no pensamento do Herbert Hart, um dos juristas mais importantes do século XX, filiado à corrente denominada de Positivismo Jurídico. Veremos como Hart desenvolve uma sofisticada argumentação visando manter a separação entre direito e moral, característica diferenciadora do Positivismo Jurídico, respondendo assim às críticas de que tal correntereferendaria ordens jurídicas marcadas por situações de flagrante injustiça.AbstractThe issue of respect for legality has always served as a point of complaint to the opponents of legal positivism. This articleaims to investigate the theme of obedience to the laws in the thinking of Herbert Hart, one of the most important jurists of the twentieth century, affiliated to the current called legal positivism.We’ll see how Hart developed a sophisticated argumentation in order to maintain the separation between law and morality, distinguishingcharacteristic of legal positivism, responding to critics that say that such current would ratify legal orders marked by situationsof injustice.

Este artigo tem por objetivo apresentaraos leitores uma reflexão téorico-socialdo positivismo jurídico como paradigmaou matriz teórica que condiciona e interferenas construções científicas sobre o sistemajurídico na modernidade. Tal empenhotem como ponto de partida a consideraçãoque o direito positivo diferencia-se e estrutura-se na modernidade com um sistema quepretende dar conta da extrema contingênciade uma sociedade complexa como a sociedademoderna. Para tanto há a necessidade deadministrar e “controlar” a contingência domundo dos fatos e isso faz com que o direitoneutralize tal complexidade dentro do própriosistema. Essa diferenciação (evolução)do direito reflete-se nas teorias sobre o direito,culminando numa ruptura drástica daciência do direito ou da dogmática jurídicacom fundamentos valorativos para o direito.Contudo, essa tentativa também gera um paradoxo, qual seja: a normatização da vida(seleção), leva, necessariamente, à exclusãode outras possibilidades. Tento em vista ateoria sociológica luhmmaniana e à guisa deconclusões fechadas, tenta-se discutir esseparadoxo do direito moderno.This paper aims on presenting atheoretical-social reflection on legalpositivism as a paradigm through atheoretical matrix that restricts and interfereson scientific productions about the legalsystem in modern times. Such pledge beginsconsidering that the positive rights differand are structured on modernity, with asystem that aims on solving the extremecontingency of a complex society as themodern one. So, it is important to manageand “control” the world of fact contingencyand this helps law to neutralize suchcomplexity inside the own system. Thisevolution at law reflects on theories aboutlaw, ending in a drastic break of law scienceor legal doctrinaire full of valuable principlesfor law. However, this attempt also producesa paradox, which is: the ruling of life(selection) leads, necessarily, to exclusion ofother possibilities. Observing Luhmann’ssociological theory and according to closedconclusions, this paper tries to discuss thisparadox of modern law.

For about 200 years, legal positivism has featured natural law and international law as opposite, if not mutually irreconcilable concepts, with natural law being categorized as a purely speculative authoritarian construct seemingly ranking government-provided 'happiness' above the freedom of the individual, and international law being positioned as a human-made, 'scientifically' constructed and democratically legitimized legal order. This perception, however, sharply contrasts with the previous coordination of both concepts into the formula ius naturae et gentis. The juxtaposition of natural against international law is, therefore, far from obvious. The article examines the processes of conceptual change that produced this juxtaposition and reviews the genesis of the problem of deriving the 'basic norm' pacta sunt servanda without recourse to natural law and argues that legal positivism fails to provide a satisfactory theory of the bindingness of international legal norms. [ABSTRACT FROM AUTHOR]

The article discusses the theories of Hans Kelsen (1881-1973), a Czech legal theorist,s on the subject of values and norm in law from the perspective of the theory of the neutrality of the state. Kelsen's view are discussed as they relate to current questions surrounding the place of religion in a public and secular educational systems. Liberal legal positivism is examined as a projection of an ethical worldview, and the problem of social cohesion is raised. The author then contrasts skepticism and pluralism as alternative paths of securing democratic government.

The article discusses the intersection of pure legal theory and political revolutions, which create authority through symbols and violence, and through his discussion criticizes the legal positivism of Hans Kelsen, a German legal scholar. Kelsen's theories are examined and the author argues that they are rendered inapplicable during revolution due to the lack of independence of enjoyed by positive law, on the one hand, and the invalidation of the is/ought distinction on which they are based, on the other. The author concludes that Kelsen's theory is in danger of reducing itself to a theory of abstract natural law, and cannot be used to describe legal transformation in times of revolution, which are political and moral.