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Copyright of Revus: Journal for Constitutional Theory & Philosophy of Law is the property of Revus - European Constitutionality Review 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.)

The article deals with the main conceptions of the relationship between law and morality in legal positivism. The research relevance is caused by legal positivism which is influential and dynamically developing in both domestic and foreign science. The purpose of the study is to consider the features that describe the positivist approach to the differentiation between legal and moral regulation in the context of the dialectical interaction of individual and social principles in society. It presupposes the establishment of both general and special in legal positivism’s views regarding the interaction of these social regulators. Special attention is paid to the consideration of not only positive aspects of the proposed concepts but also the difficulty that arise within legal positivism. The research methodology is based on the dialectical method, the method of analysis, comparative and historical methods. These methods allow us to analyze in a historical perspective the development of views on the relationship between law and morality in legal positivism, to analyze specific features in the visions of the most influential philosophers of this doctrine, to identify common ideas that unite the philosophers considered. As a result of the conducted research, it is argued that legal positivism is characterized by the correlation of law and morality as sovereign socio-normative systems that closely interact in the structure of society, but do not have the necessary connection that mutually determines their content. The sovereign nature of legal and moral regulation implies the search for models of their interaction. It is important to determine the demarcation line of the spheres and limits of each social regulator. As a result, it is concluded that there are three possible models of this interaction, and the consequences of their implementation in society. In particular, it is determined that law and morality within the structure of society can be either indifferent to each other or have identical content realized through both regulation forms or be in relation to a contradiction adducing to a social conflict.

The subject of the study is legitimate expectations as an object of judicial protection in civil proceedings, as well as the principle of law, due to the hope of a person for a procedure in which the state will ensure effective protection of the violated right or legitimate hope for the state promise. Understanding of these categories directly depends on the method of interpretation and priority of certain forms of law as substantive and formal characteristics that express the law. The study is based on a systems approach. Given the purpose of the study, methods that generally allowed to determine the optimal type of legal understanding were used, which eventually made it possible to solve the problem of finding a tool of interpretation: analysis and synthesis, induction and deduction, formal legal and comparative legal, and other methods. Arguments are made in favor of the idea that the protection of legitimate expectations in terms of legal understanding and law enforcement within the natural, social concept of law and legal positivism is reduced to legal skepticism and only the probability of compliance with the requirements of legal certainty. The main result of the study is to join a synergetic approach to legal understanding, which provides a complex but clear algorithm for comparing formal and substantive legal phenomena in civil proceedings, which is a multi-stage test of proportionality as a universal tool which provides an opportunity to take into account the diversity of certain law enforcement circumstances in the case, ensuring the legitimate expectations of the person of substantive and procedural nature. The results of the study can be used in further research to determine the alleged interpretive mechanisms in civil proceedings that have the purpose of the alleged enforcement. This determines the practical significance of the results of the study in the case of application by courts of procedural rules, determined at its discretion.

Copyright of Revista de Derecho Privado (00347922) is the property of Editorial Reus 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.)

If states all over the world have signed on to investment treaty obligations, they often have done so without knowledge or interest in resolving tensions existing between local communities and foreign investors. In cases where those relations have turned toxic, proximity can turn out to be a matter of life and death. International investment law, as presently organized, is not disposed to hear the voices of those who experience environmental or economic degradation at the hands of foreign investors who disregard local impacts. The venues in which investment laws are constructed turn out to be uninviting spaces for local communities and their allies. This essay argues that, rather than engaging in international legal arenas where such voices are unwelcome, it may be more worthwhile to work in alliance with local and transnational civil society actors to steer state power to reverse the dangers arising from the overprotection of investors. [ABSTRACT FROM AUTHOR]

The motif of the Vehmic Court—a medieval "secret tribunal"—enjoyed remarkable popularity in German literature of the late eighteenth and early nineteenth centuries. This paper analyzes the structure and function of Secret Tribunal scenes in two canonical plays of the time: Johann Wolfgang Goethe's Götz von Berlichingen (1773), which served as a template for the development of the motif, and one of its most prominent literary echoes, Heinrich von Kleist's Käthchen of Heilbronn (1810). By defining how both texts handle, elaborate and transform the historical subject, the paper examines to what degree Goethe and Kleist functionalized Vehmic trial scenes in order to comment on contemporary legal debates. In both dramas, such scenes are embedded in a multi-layered discourse on legal practices, which places a particular focus on the divide between customary and positive law, though from different angles: whereas the young Goethe offers a negative picture of instituted justice based on Roman law, and praises Germanic customary law as a form of justice that balances the power of absolutist rulers over the people, Kleist offers a parody of Vehmic Court proceedings and advocates instead for modern forms of codified justice that are meant to gradually displace outdated judicial systems. [ABSTRACT FROM AUTHOR]

Copyright of Ius et Praxis (07172877) is the property of Universidad de Talca 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.)

Copyright of Latin American Law Review is the property of Universidad de los Andes 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.)

Copyright of Palobra is the property of Universidad de Cartagena 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.)

Copyright of Prolegomena: Journal of Philosophy is the property of Society for the Advancement of Philosophy 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.)

Copyright of Romanian Review of Private Law / Revista Română de Drept Privat is the property of Universul Juridic Publishing House 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.)

New Private Law Theory ("NPLT") offers itself as almost a natural fit for legal education and in particular—I argue—legal education in the climate crisis. Yet, the world climate hardly features in the book and its impressive resource list. Without claiming to fill any existing gaps in the book, the Article seeks to articulate NPLT's relevance to sustainable legal education and at the same time tease out what facing the, social, fact of the climate crisis would add to NPLT's already rich framework. [ABSTRACT FROM AUTHOR]

Copyright of Revista Jurídica (0103-3506) is the property of Revista Juridica 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.)

Copyright of Analisi e Diritto is the property of Edizioni ETS s.r.l. 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.)

Copyright of Analisi e Diritto is the property of Edizioni ETS s.r.l. 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.)

Copyright of Analisi e Diritto is the property of Edizioni ETS s.r.l. 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.)

In this paper we attempt to reply to the thoughtful comments made on our book, Responsible Brains, by a stellar group of scholars. Our reply focuses on two topics discussed in the commenting papers: first, the issue of responsibility for negligent behavior; and second, the broad claim that facts about brain function are normatively inert. In response to worries that our theory lacks normative implications, we will concentrate on an area where our theory has clear relevance to law and legal policy: juvenile responsibility. [ABSTRACT FROM AUTHOR]

Copyright of Seminare Learned Investigations / Seminare. Poszukiwania naukowe is the property of Francis de Sales Scientific Society / Towarzystwo Naukowe Franciszka Salezego 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.)

The article critiques the notion of compelled originalism by comparing the language of the baseball rulebook to that of the U.S. and other constitutions. Topics include a description of how different rules of baseball align with originalism while others invite umpires to use a living Constitution approach, a discussion of H. L. A. Hart's philosophy of legal positivism to evaluate baseball and constitutional rules, and the contradictions of compelled originalism.

Conventionalism once seemed an attractive way to justify the viability of the positivistic social thesis. Subsequent criticism, however, has significantly lessened its attractiveness. This paper attempts to revive jurisprudential interest in conventionalism by claiming that positivists would profit more from the conventionalism of Ruth G. Millikan than that of David Lewis. Three arguments are proffered to support this contention. First, Millikan's conventionalism is not vulnerable to the major criticism leveled at conventionalism, viz its compliance-dependence (i.e., the main reason to follow a convention is that other social actors do so), as this is not its defining feature. Second, Millikanian conventionalism retains conventionalism's ability to explain how law emerges from social practices while avoiding the main disadvantage of Lewisian conventionalism, viz its inability to explain the normativity and contestability of law. Third, Millikan's conventionalism can more effectively repel Dworkin's and Greenberg's assaults on legal positivism than its Lewisian counterpart. To the memory of Maurice O'Brien [ABSTRACT FROM AUTHOR]

Reflecting on the myriad instances where juridical recognition demands a story, confession, testimony on suffering, or evidence of trauma -- this chapter considers the role of storytelling and narrative in constituting the legal person, their persona, and relationship they have to a community or the state. What are the forces that drive the demand to give an account of oneself? What are the reasons for, and implications of, resisting the injunction to reveal all? Going beyond the usual bounds of juridically recognised testimony and evidence -- the author considers how memory moves across time and space in human and non-human material formations. These questions are posed to open discussion of a wider concern about the autonomy and heteronomy of law. Looking beyond the separation of law and morality in positivist jurisprudence -- the autonomy/heteronomy distinction is a means of getting at the co-constitution of the human and non-human. The discussion thus ranges across the philosophies of history that constitute autonomy/heteronomy -- examining the tension between confidential stories of those who have suffered abuse, and the state's archival drive to preserve such material; literary and metaphorical devices for narrating the past; and a consideration of nature and destruction where the human plays an infinitesimal part in making history. [ABSTRACT FROM AUTHOR]

There is a common distinction in the socio-philosophical literature between two kinds of power: normative and causal. According to a widespread and still dominant conception - normativistic legal positivism - law has to do with normative powers, not causal ones. I will try to argue that this rigid distinction between domains seriously undermines the possibility of having a comprehensive account of what institutions are. The ontology of legal institutions is based on a complex intertwining between normative and causal aspects; hence, an artificial split between these aspects cannot but lead to a seriously limited understanding of how institutions operate in regulating social behavior. This I will show by reflecting upon what I take to be the most thorough, well-argued, and analytically deep treatment of the concept of power recently provided in Italian legal theory, namely, Marco Brigaglia's analysis of Michel Foucault in his recent Potere: Una rilettura di Michel Foucault (2019). The conclusion of my argument is that Foucault's conception of power - as analysed by Brigaglia - finds significant support from institutional ontology in showing that legal theory and legal science should broaden their focus when selecting relevant instances of power. But I will also show that jurists can teach social scientists to put up some boundaries by reflecting on the concept of intention and on the risk of hypostatizing it; otherwise, the concept of power risks becoming too vague and opening the door for all manner of conspiracy theories and fallacies concerning intention. [ABSTRACT FROM AUTHOR]

When explaining judicial decision-making, ideological accounts of judicial behavior have not seriously considered the judges’ legal conceptions. This paper brings together two disciplines that used to sit at separate tables: judicial politics and legal theory. It aims at enhancing ideational accounts of judicial behavior by analyzing how legal conceptions such as legal positivism and post-positivism are shaped and socially reproduced. We claim that legal conceptions are, to some extent, determined by the type of educational model under which a judge studied, and by his/her level of education. We surveyed federal judges working in Mexico (N=71) to explore and test our contention and computed two analyses: hierarchical cluster analysis and binomial logistic regressions. We identified three clusters of judges’ legal conceptions, where the educational model showed a significant effect in shaping the judges’ legal conceptions.

The contributions that I will discuss here have been constructed by my interlocutors in such a way as to develop, each from his or her own point of view, some of the themes and concerns at the heart of my book. I will also follow a similar path, first specifying what from my point of view constitutes the theoretical basis of the present discussion and, in a second step, discussing in my turn some of the points of view put forward by my readers. [ABSTRACT FROM AUTHOR]

Copyright of Revista Derecho del Estado is the property of Universidad Externado de Colombia 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.)

Recent iterations in international legal thought of the debate over the transformative potential of law have tended to echo the long-standing assumption that radical movements, when they employ law-based tactics, do so in the same manner as reformist movements: they mobilise the legitimacy of law for short-term goals, only with more radical long-term goals in mind. However, movements such as the 2012 student strike in the Canadian province of Quebec demonstrate more diverse, creative engagements with law that openly mock the legal system in an effort to simultaneously delegitimise the current legal order. This article argues that this movement's approach is consistent with the notion of an 'impudent' use of law as politics (Brabazon 2017b) but also extends it further to include ideas raised by this movement's theatrical 'over-compliance' with law, through which the movement turned law itself into a public spectacle. The article examines instances of the state's unprecedented mobilisation of the legal system to contain the student strike and the student strikers' creative and subversive engagements with law in response, illustrating how the ideas thrown up by this movement can advance theoretical discussion in legal scholarship about law's transformative potential. [ABSTRACT FROM AUTHOR]

An exploration of the connections between law, science, and truth, this paper argues that 'truth' is an evolving, rather than fixed, concept. It is a human creation, and the processes, or standards, by which it has been evaluated have changed over time. Currently knowledge production is anchored in the natural sciences but reproduced and validated by philosophical rationalisation. There are two problems with this technique of knowledge verification (or 'veridiction'). First, the natural sciences are not, in fact, practiced according to their ideal forms; and second, the Queen of Sciences, physics, underwent two fundamental paradigm shifts in the early nineteenth century. General relativity and quantum theory entered the scene, sending ripples throughout science, and the social sciences. These changes too have been slowly absorbed by philosophy, giving rise in part to the postmodernist and deconstructivist movements. I chart this gradual evolution of truth and knowledge production in physics and in law and analyse the resistance it has faced from both classical law and classical physics. Finally I argue that this resistance could be overcome, if legal theory, and especially legal positivism, would embrace a more accurate and up-to-date understanding of the science it purports to examine and emulate. [ABSTRACT FROM AUTHOR]

The article analyzes the interrelationship between ius and lex — categories already formed in antiquity. The opposition and complementarity occurring between these concepts was indicated, on the one hand, by giving historical and literary (ancient and modern) cases of antinomy between natural law and the state law; and, on the other hand, through the so-called “hard cases” occurring in law today, whose presence is generated by an increasingly complex reality. [ABSTRACT FROM AUTHOR]

This paper is divided into two parts. In the first one I distinguish between weak and strong Anti-Archimedeanisms, the latter being the view that metaethics, just as any other discipline attempting to work out a second-order conceptual, metaphysical (semantic, etc.) non-committed discourse about the first-order discourse composing normative practices, is conceptually impossible or otherwise incoherent. I deal in particular with Ronald Dworkin’s famous exposition of the view. I argue that strong Anti-Archimedeanism constitutes an untenable philosophical stance, therefore making logical space for the practice of a discipline such as metaethics—conceived as ethically neutral. This makes space, concurrently, for neutral conceptual jurisprudence. In the second part of the article, I attempt to show two things. On the one hand, that Dworkin’s widely discussed ‘challenge of disagreements’ to legal positivism (the latter being precisely an instantiation of conceptual jurisprudence) is founded upon strong Anti-Archimedeanism. On the other hand, that having rejected strong Anti-Archimedeanism we should consequently reject the challenge as a serious challenge to positivism. This move, of course, does not thereby imply that accounting for legal disagreements is not an important jurisprudential task. But it marks—contra Dworkin—that there is no principled or a priori impossibility of doing so within a positivist framework. [ABSTRACT FROM AUTHOR]

Keywords: procedural fairness; adjudicative procedures; ethics EN procedural fairness adjudicative procedures ethics 180 189 10 07/29/22 20220401 NES 220401 Conceptualising Procedural Fairness in EU Competition Law by Haukur Logi Karlsson Hart Publishing 2020; 181 pp. 52 Ibid, 62-71, 73. 53 Ibid, 67-73. 54 Ibid, 69. 55 Ibid, 73. 56 In pp 54-55 Karlsson analyses the different stakes that different key stakeholders may have on the basis of total accuracy vis-à-vis level of investment and distribution of errors. Injecting Ethics to EU Competition Law Procedural Design Having identified the core procedural balancing dilemma of EU competition enforcement (ie how to balance accuracy vis-à-vis efficiency) Karlsson explores in Chapter 4 how a procedural architect could deal with it.[58] Is fairness in legislative design simply a subjective matter of choice or is it determined by certain a priori conditions or norms? [59] This question might appear too theoretical to competition law aficionados, yet raising it and responding to it can enrich competition law thinking, particularly because it reveals the connections between competition law, legal theory and ethics. [Extracted from the article]

Copyright of Quaestio Iuris (QI) is the property of Editora da Universidade do Estado do Rio de Janeiro (EdUERJ) 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.)

Philosophy of law is one of the most complex and difficult branches of law, as well as philosophy, which seeks to determine the legal truth of law (law as it is). Legal positivism, as one of the philosophical schools of law, with a morally neutral theory, makes the conceptual description of law possible and necessary. According to this school of law, positive laws are laws adopted by governments, and in the context of the analysis of this school, public law emerges as a branch of law whose main mission is to study the rules governing the organization of internal and external relations of the state in its general sense, by designing general theory with a correct and in-depth understanding of its fundamental concepts. Herbert Hart’s legal theory, with a hermeneutical approach to legal rules, seeks to understand the legal system through introspective analysis and semantics of legal rules. Through a comprehensive analysis of the formulation of legal rules, while adhering to a minimum of the natural law, it also seeks to depict a system of law in which following the law is internalized, not as mere following the ruler; this system of law proposes the theory of distinction between the primary rules and the secondary rules, as well. Therefore, this descriptive analytic research analyzes Hart’s positivism in the field of public law. [ABSTRACT FROM AUTHOR]

Most theorists agree that our social order includes a distinctive legal dimension. A fundamental question is that of whether reference to specific legal phenomena always involves a commitment to a particular moral view. Whereas many philosophers advance the 'positivist' claim that any correspondence between morality and the law is just a function of political circumstance, natural law theorists insist that law is intrinsically moral. Each school claims the crucial advantage of consistency with our folk concept. Drawing on the notion of dual character concepts, we develop a set of hypotheses about the intuitive relation between a rule's moral and legal aspects. We then report a set of studies that conflict unexpectedly with the predictions by legal positivists. Intuitively, an evil rule is not a fully-fledged instance of law. [ABSTRACT FROM AUTHOR]