Search

The article "Theory of Obligations" analyzes fundamental legal concepts related to obligations. It discusses the historical evolution of legal obligation, its relationship with legal positivism, and the importance of secularism in this context. It also addresses the obligation of jus cogens in International Law, highlighting its imperative nature and the consequences of non-compliance. Finally, it reflects on the application of the objective technique in International Law and the implication of legal obligations in secularism. [Extracted from the article]

This article revisits the debate between inclusive and exclusive legal positivism, arguing that the question around which it is founded – about whether morality can function as a condition of legal validity – obscures a more basic and fundamental truth about the nature of law: that the norms composing a legal system's criteria of validity have a formal as opposed to substantive nature. Recognising this, I argue, helps to clarify some important aspects of the relationship between the ultimate norms of any legal system and its constitution. It also helps to explain away much of the debate between exclusive and inclusive positivism. [ABSTRACT FROM AUTHOR]

There is a fascinating debate that was initiated by Graham Priest, who is a chief proponent of dialetheism, about the possibility of legal gluts. In this essay, after critically evaluating the original cases for and against the possibility of legal gluts, I adjudicate a recent debate in this Journal regarding their possibility and provide new reasons for countenancing them. If my considerations are correct, then I will have provided new grounds for the possibility of legal gluts. [ABSTRACT FROM AUTHOR]

Kant also left an influential teaching in the philosophy of law, one of the important disciplines of philosophy. According to Kant, the metaphysics of nature based on reason, which is accepted as the basis of positive sciences, is as important as the "metaphysics of morality based on pure practical reason" from which theoretical and practical law emerges. Law, which forms the basis of moral metaphysics, is a concept of pure reason; Kant, who says that "there are synthetic a priori propositions" in law as in sciences, is proof of his upright stance against legal relativism. Kant, who made a great contribution to the development of positive law based on reason, had views that would form the basis of the theory of legal positivism based on the distinction between morality and law, but he did not exhibit a strict stance like the legal positivists who came later, and stated that positive law was related to types such as natural law and divine law, and displayed a middle-of-the-road attitude. Kant, who pioneered two important legal philosophers such as Austin and Kelsen, who tried to present a pure and positive science of law, has groundbreaking modern views on both pure legal theory and the issues that constitute legal practice. In Kant's legal theory, it is possible to come across information about most of the legal understandings expressed in terms of classical, modern, natural and positive law in terms of legal history. [ABSTRACT FROM AUTHOR]

The article provides intellectual arguments and tools from legal dogmatics that can help to counter the rule of law backlash. It argues that resilience can be boosted by a systemic militant rule of law approach. When it comes to restoring the rule of law, legal theory turns to the Radbruch formula (supra-statutory law). This approach remains contested by lawyers who are convinced – following the tradition of positivist legal theory – that invoking this formula is unacceptable because it violates a fundamental requirement of the rule of law, namely that of legality. Irrespective of the value of this concern, Radbruch's formula is not applicable to the current demise of the rule of law, as the law resulting from cheating and abuse in illiberal regimes does not result in evil law (though it may facilitate such developments). Instead of evil law, we face not-so-bad law. Legal imperfections exist in every legal system, and militant rule of law necessitates the systemic revision of these shortcomings in order to preempt the abuses of an anti-formalistic populist regime. In illiberal regimes, the self-corrective mechanisms of the rule of law are gradually eliminated, but the name of the game remains the rule of law. It means that judges still have (some) power to counter the backlash using extant interpretive techniques (for a while). This article will begin by introducing the concept of not-so-bad (NSB) law as an imperfection of the rule of law. In Part Two, the validity of NSB laws is discussed by relying on the source theory. It argues that even if validity is a matter of conformity to the source, the source can be understood to contain a legal merit component as determined by the rule of law, and falling short on this legal merit component can constitute a ground for declaring the norm's invalid. Part Three describes the abuses of the rule of law in illiberal democracies and describes how the NSB law of illiberal regimes does not satisfy the validity requirements of legal positivism. Part Four discusses the opportunities open to judges for resisting or undoing NSB law using existing techniques of legal interpretation and without violating rule of law principles. [ABSTRACT FROM AUTHOR]

Copyright of Dialogue: Canadian Philosophical Review is the property of Cambridge University Press 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 provides an analysis of the key theses of Gustav Radbruch, known as the Radbruch Formula, which reflect the position of the prominent German legal philosopher of the first half of the 20th century regarding the judge’s duty not to apply «intolerably unjust laws». This preference is given to the principle of justice over the principle of legal certainty in certain categories of «hard cases». The article analyzes Radbruch’s formula regarding the nature of law itself and the evaluation of statutes as either having or lacking legal character, as well as their validity. The authors’ foundational approach in analyzing the Radbruch Formula is based on considering the dynamics of Radbruch’s philosophical-legal system, as a representative of Southwest (German) School of neo-Kantianism, in relation to the balance between the principles of legal certainty and justice as components of the idea of law. Radbruch’s views on the nature of law, which from the second half of the 20th century have formed the foundation of modern non-positivist legal theory in its «inclusive version», are also examined. The main characteristic of the Radbruch Formula is highlighted through three key theses of Radbruch concerning the relationship between the principles of legal certainty and justice, and their combination into two formulas. This epistemological approach enables a more detailed analysis of the ideas embedded in the Radbruch’s Formula. Under normal conditions of law and order, the first thesis indicates the need to give priority to the legal certainty of the law in law enforcement. The first formula, or the «intolerability thesis», describes the condition under which a law, as «incorrect law» or unjust law, is not recognized as legally binding from the moment of its creation. Intolerable injustice serves as the criterion for determining that the law is not law. Only intolerably unjust laws, among those that are to some extent unjust in content, lack legal force and cannot be applied by judges in the process of adjudication. The second formula, or the «rejection thesis», describes the criterion by which to distinguish between existing laws as «incorrect law» and laws that are, by their nature, non-legal and should be denied recognition as law. This criterion for a law is its «service» to justice, whose core is the equality of all people, thereby precluding racial, religious, and other forms of discrimination. The authors view Radbruch’s theses as an integral construct of the Radbruch Formula, as taking into account their essential connections, which refer to the concept and idea of law, provides a comprehensive understanding of the nature and purpose of legal certainty, the value of justice, the degree of permissible injustice, and the purpose and nature of law itself [ABSTRACT FROM AUTHOR]

Legal positivists typically describe law as ‘thinly’ normative to distinguish it from the ‘thick’ normative force of moral norms have; which legal norms may lack. One popular account of thin normativity is social normativity. But a number of scholars have offered accounts of what it is to be a thin norm that are distinct from social normativity. This paper addresses these alternative accounts of what it is to be a thin norm. It also explores whether law counts as necessarily ‘thinly normative’ on these accounts. I argue that some accounts of thin normativity are so generic (‘super-thin’) that they are unable to distinguish between (thin) norms and nonnormative facts and thus collapse into triviality. I also consider more metaphysically demanding accounts of thin normativity, such as the view that everything is a norm that is essentially represented by deontic modals. However, law might fail to meet the demands of these slightly thicker accounts. I thus propose a view of law as consisting in nonnormative facts (diagnostic categories) and suggest sketching accounts of thin normativity as contingent, rather than necessary, features of laws and legal systems. [ABSTRACT FROM AUTHOR]

The article explores the role of the theory of «rules of recognition» by Oxford professor H.L.A. Hart in the contemporary theory of Anglo-American legal positivism, introduced by him in his central work «The Concept of Law» (1961), which has a significant influence on contemporary legal theory and philosophy. The authors reveal the content and meaning of the concept of «rules of recognition» as part of the secondary rules-«rules about rules» or «procedural rules» which determine the criteria for the validity of law along with the «rules of change» and the «rules of adjudication» in H.L.A. Hart’s terminology. The authors demonstrate the correlation with the «Grundnorm» of German legal philosophter H. Kelsen, which is more common in the Ukrainian legal theory, and which justifies the existence of constitutional norms as fundamental ones which determine the recognition of law by society and its individuals. The authors analyze the main positions of H.L.A. Hart’s followers-J. Raz, M. Kramer, B. Bix, S. Shapiro and others-regarding this theory and highlights the criticism of its individual provisions. The authors highlight how H.L.A. Hart tried to explain by the «rules of recognition» how law at the fundamental level is a matter of social convention (agreement between people inside the inhabited society), defending one of the components of legal positivism-the thesis of social fact (social sources of law thesis). The authors examine the interdependence between law and coercion by the State, the role of social practice in society’s subordination to law, the role of moral norms in the formation of law, in particular, the «rule of recognition», the correlation between the concepts of «rule of recognition» and «legal validity», and the problem of law enforcement by judges and governmental officials of the «rule of recognition». The authors summarize how H.L.A. Hart eliminates morality from the content of law in motivating judges and governmental officials to apply the rules of law, clarifies the position of legal positivism on the issue of the grounds for society’s submission to law, and demonstrates how the «empirical» theory of recognition prevails over the «analytical» theory, using R. Alexy terminology. [ABSTRACT FROM AUTHOR]

The famous German legal philosopher G. Radbruch has gone through a complex scientific path which influenced both his worldview and methodological foundations of the concepts proposed by him. The study traces the evolution of Radbruch's philosophy of law, which was formed under the influence of representatives of neo-Kantianism, in particular G. Simmel, H. Rickert, E. Lask and the school of «free law" -- G. Kantorovich, as well as historical events -- the domination of Nazism in Germany. The authors reveal the peculiarities of G. Radbruch's methodology; his position is based on the neo-Kantian methodology of distinguishing between "what is" and "what ought to be", on the methodology of the philosophy of values and the principle that it is logically impossible from what is to derive what is valuable, what is right, what ought to be. G. Radbruch viewed law as a cultural phenomenon, a value fact that differs from other normative systems by a special value that is important for the realization of justice. The law as a phenomenon has a positive form ( statute, custom, international agreement) and social significance (regulates human behaviour and relations). But law also has a normative character (it is an evaluation and a requirement for reality), it also has a social purpose (which is to achieve the public good), it has an individual purpose (which is to realise and ensure human rights) and a nature of universality, and therefore equality and it should embody justice. The authors examine the wellknown and fundamental concept of the "idea of law" which is fundamental to Radbruch's philosophy and consists of three elements: justice, expediency (sustability), and legal certainty. The idea of law is an essential requirement for positive law; it legitimizes it, makes it "correct law" and "lawfull law (statute)". Legislation that does not embody the idea of law essentially loses its legal nature. Justice is the formal equal treatment of equals and unequal treatment of unequals. Legal certainty reflects the social and individual purpose of law and justifies human freedom, equality and uniqueness on the basis of human value. Expediency (sustability) is the clarity, certainty, and comprehensibility of the law and should be understood as a basis for ensuring justice. G. Radbruch's concept of the "idea of law" is essentially a modern theory of the legitimation of positive law . [ABSTRACT FROM AUTHOR]

This article is devoted to the teachings of the British philosopher, positivist and legal theorist Herbert Hart. Central to the publication is the analysis of Hart’s neo-positivist concept as an attempt to revise the initial premises of legal knowledge. In this context, the question of the British positivist’s distinction between law and morality is examined, as manifested in his reflections on the nature of moral, natural and positive rights. Emphasis is also placed on that basic position in Hart’s theory, according to which empirical argumentation presupposes the existence of legal phenomena only within a system of rules. By virtue of this notion, the state is seen as a collection of officials charged with authority based on legal rules. That is why, in the doctrine of legal Neo-positivism, the basis of the state structure is not the power of a sovereign, as in the teaching of John Austin, but legal rules as a condition for the legitimacy of state coercion. [ABSTRACT FROM AUTHOR]

The article is devoted to the study of the interpretation of the essence and nature of punishment as a component of legal responsibility, which allows you to effectively respond to changes in social relations and ensure the principle of justice, which is necessary to maintain balance in society and the state. The article examines different approaches to the interpretation of the nature of punishment in the writings of jurists - supporters of the positivist paradigm of law, who worked in Ukraine in the middle of the 19th and early 20th centuries. Modern discussions focus on important aspects of legal responsibility, especially regarding its stability and dynamism in the conditions of global challenges for the existence of humanity. Legal responsibility and justice are closely related because it serves as a tool to achieve justice in any legal system. Changes in social values significantly affect the perception and role of punishment as a mutual process between a person and society. Punishment affects not only the person of the criminal, but also society, which needs a visible reaction to the violation of the balance and justice of social existence. It is important to maintain a balance between stability and dynamism of legal responsibility: stability gives the legal system reliability, while dynamism allows it to adapt to modern conditions and needs of society. Analyzing different views on the essence of punishment, the authors found out that famous scientists - L. Vladimirov, O. Kistiakivskyi - share several common views. First, they did not consider legal responsibility to be an independent legal institution inherent in certain branches of law. Second, they considered punishment within the framework of criminal law and considered the nature of responsibility depending on many factors. They provided a structured classification of punishments depending on specific factors affecting the use of a certain type of punishment. They were supporters of the humanization of punishments and considered the very process of serving the punishment not so much as the suffering of the criminal personally, but as his reeducation and socialization. [ABSTRACT FROM AUTHOR]

Yükümlülük, normatif olana dair inceleme yapan herkesin ilgisini çeken bir kavramdır. Kavram üzerine birbiri ile çekişen pek çok iddia dile getirilmiştir. Bu konuda araştırma yapmak isteyen bir araştırmacı oldukça kabarık ve karmaşık bir külliyat ile karşı karşıya kalacaktır. Yükümlülük üzerine tartışma konularından birisi de hangi sahaya ait bir kavram olduğu üzerinedir. Hart bu probleme ilişkin üç görüş olduğunu belirtir. Birinci görüş yükümlülük kavramının kullanıldığı her bir sahada farklı bir anlama geldiğini savunur. Bu görüş değişkenlik görüşü olarak adlandırılabilir. İkinci görüş genel bir yükümlülük kavramının bulunduğunu ve bu genel türün hukuki, ahlaki, toplumsal, siyasi ve benzeri türleri olduğunu savunmaktadır. Bu görüşe göre her bir alt tür genel yükümlülüğün özelliklerini taşımakla birlikte sahip oldukları kendilerine özgü özellikleri yönünden diğer türlerden farklılaşmaktadır. Üçüncü görüş ise yükümlülük kavramının aslında ahlaki nitelikte bir kavram olduğunu diğer sahalarda bu kavram kullanıldığında buna ahlaki bir anlamın dâhil olduğunu savunmaktadır. Bu bağlamda örneğin hukuki yükümlülükler ahlaki yükümlülüklerdir. Hart bu görüşlerden sonuncusunu açıkça reddetmektedir. Ona göre hukuki yükümlülükler ve diğer yükümlülükler ahlaki yükümlülüğün bir türü değildir. Hart Dworkin ve Raz özelinde bu görüşe ilişkin detaylı eleştirilerde bulunmuştur. Hart’ın değişkenlik görüşü ve genellik görüşü arasında hangisini seçtiği ise tartışmalı görünmektedir. Esasında Hart açıkça değişkenlik görüşü taraftarı olduğunu beyan ediyor gibi görünmektedir. Buna mukabil bilhassa “yükümlülük idesi” kavramına atıf yapması ve hukuki ve ahlaki yükümlülüklerin benzer ve farklı yönlerine ilişkin değerlendirmeleri pekâlâ onun genellik görüşü lehine argümanları olarak yorumlanabilmektedir. Kısaca bu şekilde özetlenebilecek bu tartışmalı durum bu çalışmada incelenmekte ve Hart’ın nasıl bir tutum benimsediği ortaya konmaya çalışılmaktadır.

The article explores the 1958 “Harvard” conception of legal reasoning presented by the British philosopher and jurist Herbert Hart, within the context of a contemporary reinterpretation by American jurist and historian of legal thought, Gerald Postema. Postema’s interpretation, labeling Hart’s view as “settled-meaning positivism”, posits it as a unity that encompasses both the delineation of distinct types of argumentation in the realms of “core” and “penumbra” (linguistically mediated clear and controversial cases of law enforcement) and the reduction of law and legal reasoning to the “core” of rules and their established linguistic meanings. The article aims to analyze Postema’s perspective in the broader context of the evolution of Hart’s views on legal indeterminacy and judicial decision-making. The relevance of this topic lies in the necessity for a more comprehensive and balanced reconstruction of Hart’s theory, which is paradigmatic for modern positivism and Anglophone jurisprudence, in the light of the contentious and narrow character of its assessments. The authority of the Postema’s interpretation, seen as providing new insights into the work of the British jurist, adds to the relevance of this analysis. The research uses diverse, primarily hermeneutical, methods, drawing from Postema’s paper and the available body of Hart’s writings, as well as the representative biographical and scientific literature. The article examines the historical context of the 1958 essay’s creation and the doctrine of judicial reasoning contained within it. Ultimately, while recognizing the stimulating role of Postema’s re-description of the 1958 doctrine, the article finds some of its key assertions (including Hart’s understanding of the nature of legal indeterminacy and judicial choice, the attribution of “settle-meaning positivism”, and a doctrine of the rule of law) to be contentious or unwarranted.

The article examines the issue of finding the basis for common ground and scientific dialogue between national legal positivism and analytical positivism represented in common law countries. It is stated that despite significant methodological differences and a relatively independent history of formation, these paradigms have much in common: the problem of normativity of law, judicial discretion and legal axiology. This connection on these issues is confirmed, first of all, by modern theories and general trends in the development of national doctrine to expand the methodological basis for improving the ideas about the positive connections that underlie the legal system. Purpose: in the context of objective differences between national and Anglo-American (analytical) legal positivism, to show their similarities in the issues being studied and key theses. Methods: general scientific (dialectical and historical methods, general logical techniques, systematic and comparative methods), special legal (comparative legal analysis and legal hermeneutics). Results: the study allows to determine not only the specifics of analytical legal positivism in comparison with national positivist dogma, but also to identify points of convergence of the mentioned doctrines.

Allan Hutchison's book "Hart, Fuller and Everything After: The Politics of Legal Theory" critiques the dominant project of twentieth-century Anglo-American legal philosophy, advocating for a more historically and politically contextualized approach to jurisprudential inquiry. He challenges the alleged universality of legal theorists' efforts and urges a pragmatic and critical inquiry that prioritizes practicality and responsiveness to socio-political contexts. The text also discusses the impact of H L A Hart's 1957 lecture on Anglo-American jurisprudence, the subsequent debate with Lon Fuller, and highlights Canadian scholars who have pushed jurisprudential boundaries, showcasing diverse perspectives within legal academia. [Extracted from the article]

This introductory essay accompanies the publication of H.L.A. Hart's "Policies, Principles, and Adjudication," which I uncovered amongst Ronald Dworkin's papers at Yale. Hart's previously unpublished paper was composed between 1977 and 1982 and delivered at a seminar at Oxford. It offers an extended critique of Dworkin's conception of "policies" in his Taking Rights Seriously. This critique is not reproduced elsewhere in Hart's published work. The paper also provides an expanded version of Hart's thoughts, in his "Postscript" to The Concept of Law , on judicial reasoning by analogy and the phenomenology of judicial decision-making. Hart's essay adds significantly to our understanding of the so-called "Hart-Dworkin debate," around which much of contemporary Anglophone jurisprudence continues to be structured. [ABSTRACT FROM AUTHOR]

Legal experts can reliably ascertain which legal norms are valid, and therefore which legal propositions are true. Legal experts are in this position because they have a grasp of the deep cognitive structure of law: the habits, commitments, and values that characterize the practice of legal argument in a specific jurisdiction. Legal expertise, thus understood, determines the content of the law, which is therefore not reducible to an aggregation of authoritative legal texts. Because social facts about legal experts' values and commitments can determine the content of the law, references to moral considerations and principles of justice as valid legal reasons, in legal argument, are not a problem for (at least some forms of) legal positivism. Legal expertise thus shows that non-positivists might be right about (as they would put it) the irreducibility of legal content to communicative content without being right about the claims that moral facts determine the content of the law or that the validity of legal norms turns on moral considerations. Legal expertise also plays an important causal role in legal decision-making and is not, as some of the literature on judicial decision-making might suggest, epiphenomenal. From a moral perspective, while the existence of a class of legal experts is not necessarily valuable, it does have certain benefits, particularly in conditions of moral disagreement. [ABSTRACT FROM AUTHOR]

A previously unpublished paper by H.L.A. Hart responding to some of the work of Ronald Dworkin and found among Dworkin's papers. For commentary on the origins and background of the paper see Samuel Burry, "H.L.A. Hart's Lost Essay on Policies, Principles, and Adjudication," American Journal of Jurisprudence 69 (2024): 000-00. [ABSTRACT FROM AUTHOR]

Do inconsistent laws, which are in the form of inconsistent legal obligations, provide us with good reasons for accepting the possibility of legal gluts, which are true legal statements whose negations are also true? Given the contingencies of the law, it is unlikely that many will deny the possibility of inconsistent legal obligations, but it remains an ongoing debate whether these lead to any legal gluts. In a recent debate, Graham Priest [Priest, G. 2006. In 'Contradiction'. In First printed by Martinus Nijhoff in 1987. 2nd ed. Oxford: Oxford University Press; Priest, G. 2017. 'Where Laws Conflict: An Application of the Method of Chunk and Permeate'. In Law and the New Logics, edited by H. Glenn, and L. Smith, 168–180. Cambridge: Cambridge University Press] has argued from inconsistent obligations to legal gluts and JC Beall [Beall, JC 2017. 'On inconsistent laws and gluts'. In Law and the New Logics, edited by H. Glenn, and L. Smith, 199–207. Cambridge: Cambridge University Press.], while he has acknowledged that there are inconsistent obligations, has argued against Priest's arguments for legal gluts. In this paper, after reviewing the debate, I adjudicate it and provide reasons for resisting Beall's arguments again Priest thereby providing a possibility for legal gluts. [ABSTRACT FROM AUTHOR]

In the article "HOW PRACTICES MAKE PRINCIPLES AND HOW PRINCIPLES MAKE RULES" by Mitchell N. Berman, published in the Journal of Ethics & Social Philosophy, the author introduces the theory of "principled positivism" to explain how legal norms are determined by actions, mental states, and moral notions. The article challenges traditional legal theories by arguing that they may not fully account for the existence of legal principles and the operation of legal rules. By examining US Supreme Court cases, the text explores the relationship between legal principles and rules, emphasizing the importance of understanding how principles shape legal outcomes and influence judicial decision-making. [Extracted from the article]

In this article, we argue that the current concept of the legal subject should be expanded to include narrative identity, in other words that the narrative subject of law should be recognised. With this aim in mind, we firstly (i) identify the philosophical assumptions and tools necessary to articulate the thesis of homo narrans. We find them in Martin Heidegger's work Being and time, where he made a groundbreaking contribution to twentieth-century philosophy by deconstructing the concept of the subject. Then (ii) we discuss the key theoretical-legal assumptions and tools related to the legal turn we advocate, and finally (iii) we indicate – provisionally and in broad outline – the key consequences of recognising the narrative legal subject of law in the justice system. [ABSTRACT FROM AUTHOR]

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.

This paper analyses the relationship between the deterioration of the rule of law and the negative consequences on socio-economic development in the contemporary world. To scrutinize this correlation, quantitative-comparative analysis and secondary data review methods will be used. This aims to determine the extent to which the rule of law has a determining role or not in the development of states and societies. These results can serve as data for the basis of qualitative and sustainable public policies. The research aims to compare and contrast countries such as the United States of America, Singapore and Romania and determine the correlation between the deterioration of the rule of law, with a specific focus towards measurable elements such as the absence of corruption, and the consequences over economic development and prosperity. The country case studies have been identified purposefully to reflect different geographical areas, different historical pasts, and various levels of economic development. Despite the differences, the research aims to solely analyse the correlation between the rule of law and economic status.

Copyright of Süleyman Demirel Law Review / Süleyman Demirel Üniversitesi Hukuk Fakültesi Dergisi is the property of Suleyman Demirel Universitesi Hukuk Fakultesi Dergisi 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 examines the rise of gang violence in Haiti and its impact on the country's political and social climate. It discusses the formation of a council by the gangs, which has further destabilized the situation. The article provides an overview of the situation without taking a specific stance, and suggests that readers may find additional context in Judith Jarvis Thomson's book "The Realm of Rights." [Extracted from the article]

This article provides an introduction to the life, work, and legacy of Hermann Heller, a legal scholar during the Weimar Republic. Despite facing challenges as a Jewish member of the left-wing SPD, Heller played a significant role in legal battles during this time. The article discusses his personal life, political activities, and his critical views on figures like Carl Schmitt and Hans Kelsen. It also highlights some of Heller's key works, including his ideas on social homogeneity, the importance of the rule of law, and the dangers of dictatorship. The article concludes with an evaluation of Heller's thinking and its relevance today. Additionally, the article mentions a book titled "Hermann Hellers demokratischer Konstitutionalismus," which is a collection of essays on Heller's ideas about the state, democracy, and social order. The essays cover various topics such as the tension between law and power, Heller's critique of legal positivism, and his emphasis on the integration of social classes. The essays highlight Heller's contributions to political science and his opposition to authoritarianism and legal formalism. The text concludes by stating that Heller's work is worth studying and offers valuable insights into contemporary political and cultural issues. The document is the second edition of a book published by J. C. B. Mohr in Tübingen, Germany, but the specific content or subject matter of the book is not provided. [Extracted from the article]

Copyright of Tabayyun is the property of Arab Center for Research & Policy Studies 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 Tabayyun is the property of Arab Center for Research & Policy Studies 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 in the Cornell Law Review discusses the impact of rapid climate change on homeowners' expectations and regulatory takings. It highlights the effects of Hurricane Idalia in 2023, record-breaking weather events, and the response of the insurance industry to natural disasters. The article argues for a redefinition of reasonable investment-backed expectations in times of climate change, emphasizing the need for dynamic expectations, informed by disasters and investor behavior, and influenced by local customs. It suggests a shift towards a per se rule in areas prone to climate change-related disasters to limit property interests. [Extracted from the article]

The article presents a bibliographic review of the book "Theory of Law. An Introduction" by Juan A. García Amado, a prominent jurist and philosopher of law. García Amado, known as "Toño", is recognized for his lucidity and ironic style when addressing topics such as legal reasoning and legal positivism. His work invites reflection on law from various perspectives, making him an important reference in the legal field. [Extracted from the article]

The Chilean Consumer Protection Law does not mention sustainable consumption as an explicit principle. In this context, the objective of this work lies in investigating its possible validity as a general principle of consumer law in Chile. The research managed to prove the initial hypothesis that postulated the legal effectiveness of sustainable consumption as a general principle of consumer law. In fact, from the use of the dogmatic methodology, it was concluded that its validity can also be derived from a harmonious and systematic interpretation of the principles and rules that the Chilean legal system actually contains. Specifically, the normative effectiveness of sustainable consumption can be derived from two ways within the techniques of legal positivism. The first of them consists of a concretization of general principles, which, in the hypothesis presented, would correspond to pro natura and pro homine. Secondly, sustainable consumption as a general principle would be obtained from a generalization made from specific manifestations. The latter would be rooted in the consecration of basic consumer rights, the discipline of information and advertising, as well as the establishment of mechanisms to extend the durability of goods. [ABSTRACT FROM AUTHOR]

I will advance two criticisms and one comment to Hershovitz's Law is a Moral Practice. First, I will argue that the idea that law is a moral practice because it rearranges our moral relationships tends to be circular, unless a conception of practical reason connected to morality and human practices are advanced. Second, I will problematise the predominance of a backward-looking legal reasoning that focuses on rights and wrongs only. Finally, I will explore Bernard Williams diagnosis regarding 'the problem of the morality system' and scrutinise how his reflections might have implications for the key premises advanced by Hershovitz. I demonstrate that any explanation of law as moral practice needs to explain the role of our engagement with the law as the kind of creatures we are, i.e. rational creatures. This means that any account of the relationship between law and morality that does not explain the character of practical reason and how it engages with the law is deficient and unsatisfactory. Hershovitz is eager to show that law cannot be neutral and he tells us that it is instead a moral practice that deals with rights and wrongs in a robust manner. However, his account cannot explain to us how the judge and legislator make this possible through the law. Therefore, within this conception, there is no mediation or bridge between law and moral practice qua rational (and not qua practice). Hershovitz seems to discard the ancient philosophical platitude, namely that we cannot understand and engage with right and wrong, good or bad, except through the mediation of reason. [ABSTRACT FROM AUTHOR]

In Law as a Moral Practice, Scott Hershovitz defends the pluralist view that there are many sets of legal norms which we can validly employ for different purposes, none of which qualifies as uniquely legal. He claims, further, that there is no set of moral rights and duties that is distinctly legal either, because the domain of morality is unified. I argue, against Hershovitz, that the existence of different sets of norms within legal practice does not mean that no set is basic, or fundamental. There is arguably one set (the actual moral rights and duties that law re-arranges) which is fundamental, and from which all the other sets are derivative. I argue, moreover, that we have strong deontological reasons to doubt that the domain of morality is unified. If political morality comprises distinct domains, not collapsible to a single moral concern, then the possibility of a distinctively legal domain of morality remains open. [ABSTRACT FROM AUTHOR]

Principles of law are the ideal of law pursued by the legislator in the activity of creating law. They express man's highest aspirations: freedom, equality and justice. The question of the principles of law carries with it a real burden of meaning. It raises great questions, with still unexpected answers (Humă, 2011, p. 103). Principles of law are a subject of maximum resonance in legal thought, but also of maximum resistance to relative contingencies and legal positivism. The renaissance of natural law is at the same time a renaissance of the principles of law housed in human nature (consciousness). The individual conscience, especially the legal conscience, is the 'repository' and 'shield' of the inherent principles in the human being, principles which must assert their presence in any positive law: freedom, responsibility, equality, justice, unity, etc. The principles of law determine the existence of the material legal reality as premises of the positive legal order. The principles of law are strongly present in the legal-action framework: in the processes of elaboration and realisation of the law. The principles of the law contribute to the completion of the incomplete positive law in the analogia iuris process. [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.)

Conceiving legal obligations towards future generations is challenging--especially from a positivist stance and if obligations and claims are understood as being correlative in nature. Legal obligations towards future generations are often rejected from the outset if (and insofar as) there is no explicit acknowledgement or established doctrine. This neglects the power of sound legal interpretation. I argue that obligations towards future people and generations are grounded in the relational character of human rights and that their positivity is not a problem in a legal order containing norm texts that can reasonably be interpreted as acknowledging human rights; no additional enactment is necessary for these obligations to be part of the positive law. This claim is based on a (novel) concept of fundamental rights which is compatible with legal positivism. [ABSTRACT FROM AUTHOR]

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1293-1299 | Article | (Abstract) Jurisprudential accounts of the autonomy of EU law have struggled to offer a compelling account of its unique features. Nevertheless, I argue that Ronald Dworkin’s court-centric methodological approach is better-suited than Hartian positivism to shed light on the notion that EU law is autonomous. This is because most questions about the autonomy of EU law, when asked from a positivist perspective, are of little or no practical significance and philosophical inquiry will inevitably be inconclusive. By contrast, the autonomy of EU law is routinely employed as a normative principle helping EU courts to decide the issue of which party should win the case at hand. It is better understood as a shorthand reference to a political requirement, namely that EU courts ought to identify the main values behind European integration and to build – as opposed to find in the extant legal materials – a coherent body of principles.

Law as such can be a source of evil. It is possible to reach this when the binding force of law is not found in moral values but in sanctions. Another source of possible immorality is found in the position that the sovereign will is the law, as well as in the position “law is law”. Especially dangerous is the rejection of value judgments in law, as well as moral relativism according to which everything is possible. This description of facts can be seen in authoritarian societies. Law based on the rule” law is the law” enables everything to be justified in the name of legal security, even the biggest crimes because the one who committed them only obeyed the law and obeyed its will. Thus, it is possible for the unwritten will of the sovereign to be a source of law. Such a setting of law, which is not based on values, is especially dangerous in the matter of criminal law. Efforts to explain the world of law apart from society and the world of values led to a refinement of the concept of law, but at the same time it narrowed it and limited its scope of application, which caused irreversible damage. For this reason, moral values are the basis of law and a barrier against its immorality. It will never happen, in the full sense, that something is in accordance with reason and contrary to moral values. On the contrary, this will strengthen the legal system, which will avoid being disarmed [ABSTRACT FROM AUTHOR]

Based on the assumption that literature is an elementary component in the training of law students, as it develops skills such as creativity, critical and reflective capacity, a sense of ethics and justice, empathy and communicative skills, essential to professional practice, a theoretical dialogue is suggested between the categories described by Trindade and Gubert (2008) -- Law in Literature, Law as Literature and Right to Literature -- and the periodization of juris-philosophical currents proposed by Cassien and Billier (2005). In the part referring to Law in Literature, some fictional literary works are listed that can contribute to shed light on some legal issues, given its proximity to the topic. In Law as Literature, it is analyzed how the use of typical literary resources has been an effective response to the crisis suffered by legal positivism throughout the 20th century and which entered the 21st century. It is postulated that the use of literature in Law courses can alleviate the dryness of certain content, facilitating its assimilation. It is also argued that the development of pleasure in reading among jurists can help mitigate positivist practices that still prevail, which are an obstacle to the full realization of citizens' rights [ABSTRACT FROM AUTHOR]

The ontological question of whether nature 'naturally' has rights is related to indigenous people's interactions with nature. In the academic discussion of that relationship, roughly two movements can be discerned. Indigenous people in the first movement would reject the idea of personality as something granted by humans to non-humans. A second movement is the view that thinking about rights does not coincide at all with indigenous people's interactions with whatsoever; indigenous people, instead of a Western, dialectical discourse of rights, would have a more semiotic conception of normativity. In this way, the question of the ontology of rights for nature masks an underlying colonialism. A third perspective would offer an outcome from this discussion. This is the view that a philosophical-ontological discussion about the granting or recognition of rights for nature is just unimportant. The legal fiction theory merely declares the anthropological concept of man to be a legal subject and sees in the concept of legal personality a legal, dialectical construct, which, through sovereignty legitimated by the state, holds natural persons and legal persons to be equal. This argumentation is pragmatic and does not yield many legal-philosophical consequences. [ABSTRACT FROM AUTHOR]

Knowledge implies the presence of a positive relation between a person and a fact. Factual ignorance, on the other hand, implies the absence of some positive relation between a person and a fact. The two most influential views of ignorance hold that what is lacking in cases of factual ignorance is knowledge or true belief, but these accounts fail to explain a number of basic facts about ignorance. In their place, we propose a novel and systematic defense of the view that factual ignorance is the absence of awareness, an account that both comes apart from the dominant views and overcomes their deficiencies. Given the important role that ignorance plays in moral and legal theory and our understanding of various epistemic injustices, a precise and theoretically unproblematic account of the nature of ignorance is important not only for normative epistemology, but also for law, ethics, and applied epistemology. [ABSTRACT FROM AUTHOR]

This article contributes to the understanding of why states resort to targeted, or smart, sanctions to meet the threat of cyber intrusions and whether this type of response is a forced measure or an effective tool to halt, prevent and punish attacking states. The tools of analysis used in the article are legal positivism and political theories, including Mancur Olson's theory of groups and Francesco Giumelli's analytical framework for assessment of sanctions. The authors address the effectiveness of sanctions as a reaction to cyber-enabled activities through the lens of regulation introduced in the United States, the European Union and the United Kingdom, which are the most developed counter-cyber sanction regimes, analysing publicly known cases of cyber-related sanctions. [ABSTRACT FROM AUTHOR]

Copyright of Acta Comportamentalia is the property of Instituto de Psicologia y Educacion de la Universidad Veracruzana 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 definition and ambit of criminal policy has been evolved since its birth and it is today regarded as knowledge and art of recognition and implementing several measures and backward or foreward responses invented to tackling criminal phenomenon, defending society and citizens and safeguarding individual rights and liberties by state and/or community. By different sorting out of its dual elements -criminal phenomenon and body of society-, variable relations and state-based or community-based models evolve. State-based models could belong to authoritarian or totalitarian states as well as to liberal states. On the other hand, the longlasting and fundamental problematic of criminal jurisprudence as to source of the right to punish has been enfronted with within two major categories of doctrines -psitivist doctrines and natural law doctrines. This research, using descriptive-analytical method, has been to a find the interrelation of these doctrines and the so-called models and has found out that state-based models, authoritarian and totalitarina models are mostly compatible with natural law doctrines, while liberal state models are more conformed with positivist doctrines. [ABSTRACT FROM AUTHOR]

The article illustrates the different meanings of the term "logic" in Weber's work and then proceeds to discuss his approach to the explanation of historical events and in particular to counterfactual analysis. Weber's epistemology is first situated within the neo-Kantian debates of his time as well as legal positivism and historical jurisprudence. The article then focuses on this author's conception of science as a value sphere, on the aims and methods of explanation in the social and historical sciences and on the key concepts of possibility judgements and adequate causation. The central role played by counterfactuals and modal logic is illustrated through the example of the battle of Marathon, which Weber himself saw as the starting point of a causal chain leading to the rise of Western rationalism. The article concludes by highlighting the pioneering role of Weber's counterfactualism for the subsequent development of possible worlds theory and its use in the causal analysis of singular historical events. [ABSTRACT FROM AUTHOR]