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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]

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]

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]

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]

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.

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.

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]

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]

The article is a review of Scott Hershovitz's book "Law Is a Moral Practice," which defends the Moral Practice Thesis (MPT) and the Obligation Thesis (OT). The reviewer criticizes Hershovitz for unsupported empirical claims and dismissing other scholars' views. They question Hershovitz's argument that law and morality are not separate systems and suggest he overlooks moral development in children. The text critiques Hershovitz's views on legal norms, the distinction between law and morality, immoral laws, and lawyers' expertise in moral matters. It concludes that his claims lack evidence and conflict with common understandings of law and morality. The article from CNN discusses the rise of gang violence in Haiti and its impact on the country's fragile political and social climate. It mentions the formation of a council by the gangs, further destabilizing Haiti. The article provides an overview without taking a specific stance, and readers can refer to Judith Jarvis Thomson's book "The Realm of Rights" for more information. [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]

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.

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]

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]

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.)

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]

(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.

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]

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]

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 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]

It is natural to think of legal positivism and jurisprudential naturalism as intellectually allied ideas. Legal positivism is associated with the idea that law is a matter of social fact; naturalism is a philosophical tenet that, among other things suggests the importance of scientific findings and methods to philosophy. At the very least, there seems to be a close family resemblance between the two views. In this essay, I challenge this view from a naturalistic perspective. I show that the best-known proponents of legal positivism in the twentieth century all rejected naturalism. I dedicate most of my discussion to H.L.A. Hart's version of legal positivism, as it appears superficially friendly to naturalism. I show that throughout his career and in writings on a wide range of topics, Hart consistently argued against the applicability of the methods of science to the explanation of social phenomena. This is not a small matter: I argue that it is this anti-naturalistic stance that contributed to his descriptively faulty account of adjudication. After reviewing more briefly the work of other leading legal positivists, I argue in my conclusion that those seeking to advance a naturalistic approach to law should turn their backs of much of twentieth-century legal positivism, which in various guises has been hostile to naturalism. [ABSTRACT FROM AUTHOR]

In this article, I argue that Dworkin's one-system view of law and morality is not as easy to refute or dismiss as some would suggest. In a recent article, Dindjer criticizes a new kind of opposition to legal positivism characterized by both its opposition to a two-system view of law and morality and its promotion of a one-system alternative picture. By re-examining Dworkin's criticisms of the two-system view and by providing additional reasoning of my own, I show that Dworkin's one-system interpretative approach is not just sensible but also promising in refocusing contemporary debates in general jurisprudence on a moral and political reading of the structural features of law. [ABSTRACT FROM AUTHOR]

The development of legal studies is colored by the views of legal scholars who are in opposition to one another, namely views that emphasize that law is sui generis, self-sufficient, and immanent rationality as well as the view that law is not independent or can be influenced by other disciplines, such as politics and economics. Based on these differences in views, the problem to be examined is formulated, namely whether the science of law is an autonomous scientific discipline. These problems are examined based on the type of normative research with a conceptual approach. The analysis related to legal autonomy begins with examining the subject matter of jurisprudence which is nothing but an attempt to find out the nature of law or an attempt to answer the question ’what is law?’. Many jurists have provided definitions of law, including Roscoe Pound, Jeremy Bentham, Hans Kelsen, H.L.A. Hart, Ronald Dworkin, and John Finnis. These jurists have something in common in that law is a rule of conduct or has a normative character. Next is described a view that rigidly states that law is autonomous, namely from Ernest J Weinrib with his concept of ’law as immanent rationality’, and a view that does not rigidly state that law is autonomous, namely from Gunther Teubner and Niklas Luhmann with his concept of ’law as an autopoietic system’. The conclusion of this research is that law is autonomous, but not understood in a rigid manner, where law is closed and open at the same time. [ABSTRACT FROM AUTHOR]

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. [ABSTRACT FROM AUTHOR]

This article examines the most prominent features of Javier Hervada's scientific personality, as foundation for the understanding of its potentiality of expansion and development. It deals with questions such as what kind of thinker was Javier Hervada, what was the academic context of his work, what where specific problems that he had to address. It also considers Hervada's intellectual influences, his relationship with Thomistic tradition and the XX's century legal theory and science, and the nature of his attempt to introduce the classical legal philosophy into a totally new epistemological field as the modern jurisprudence. The article also postulates a distinction between the different epistemological levels in which Hervada's contributions are made. For example, it distinguishes the philosophical conceptualizations from the ones that corresponds more accurately to the scope of the Legal theory and Legal science. This distinction, allows to formulate a criterion to evaluate the impact of the reformulation of certain ius-philosophical elements in the scope of legal theory and science. Consequently, the article, gives some insights on the question of the continuity and rupture between «the fist» and «the second» Hervada. Finally, the article, states that as the topics and accents of Hervada's work respond, at least partially, to the problems of his time, the hervadian legacy, is to be continued in a way that can also answer to the problems of our own ius-philosophical and jurisprudential context. To accomplish this challenge, the text hints some possible routes of expansion and development of the hervadian legacy. [ABSTRACT FROM AUTHOR]

The essay examines the impact and relevance of Hans Kelsen, perhaps the most distinguished jurist of the 20th century. Best remembered for his Pure Theory of Law, this text explores both Kelsen's life and ideas. It delves into his influence on legal epistemology, his role in the development of legal positivism, and constitutionalism. Moreover, the essay analyzes Kelsen's relationship with economists from the so called Austrian School of Economics, particularly Friedrich von Wieser, Hayek, and Schumpeter. Finally, it questions the relevance of Kelsen's theory in the 21st century, based on his epistomological focus approach and his critique of legal and political ideologies. [ABSTRACT FROM AUTHOR]

In an article that appeared in Volume XII (2002) of the IYIL, Benedetto Conforti discussed the quandary of "just wars" in contemporary international law, wondering whether – and on which conditions – wars conducted outside the UN framework can be considered "just". On that occasion, Conforti unearthed a thesis that he had decades prior put in writing in the first edition of his famous Manuale, according to which any use of force performed outside the UN Charter could not be evaluated legally, for it pertained to the realm of "legal indifference". He thus concluded that, when it comes to assessing the "justness" of wars, the answer can be given only by taking stock of moral considerations, that is by resorting to "natural law". The present contribution aims to appraise this provoking position expressed at the beginning of this millennium. It is argued that resort to the category of legal indifference must not be appraised from a purely philosophical standpoint, but rather in two complementary ways: first, as implying that the justness of any war cannot be decided on the basis of positive law; second, as a metalegal tool to comprehend and describe fundamental changes in the international community. Conforti's theory of legal indifference vis-à-vis the justness of wars maintains its fascinating quality and utility today. [ABSTRACT FROM AUTHOR]

The Epistemological Turn of the Twentieth Century's Legal Positivism: This article analyses the essential changes in the positivist law theory from its modern origins, usually remitted to Hobbes, Bentham and Austin, to the positivism of Kelsen and Hart. It is argued that a crucial epistemological break can be noticed, revealed in the most analytic-rationalistic character of Kelsen and Hart's elaborations, compared to the more facts-descriptive style of their predecessors. Rationalism in Kelsen and Hart may explain the conventional character of the basic norm and the rule of recognition, validity only formally, and the difficulty of accounting for the formal and substantive components. The change can be associated with Kelsen and Hart's intellectual context, particularly Hume's 'guillotine', the influences of logical positivism and neo-Kantian schools. This turn should not be overlooked since it casts doubts on the usual speaking of Kelsen and Hart's legal positivism in the descriptive sense of nineteenth-century philosophers, with relevant consequences for thinking of law. [ABSTRACT FROM AUTHOR]

The Politics of Legal Theory Revisited: Most legal positivists today hold that legal positivism is a morally neutral and purely descriptive account of the nature of law. This article considers this claim by examining Brian Leiter's intriguing claim to the contrary. While I welcome examining the political presuppositions of jurisprudential theories, I show that the association of legal positivism with radicalism is not true. Examining the works of prominent legal positivists, I show that there is no basis for thinking of any of them as a political radical. I also show that many legal positivists were politically conservative. Beyond the historical question, I also argue that there is no basis for the claim that legal positivism is necessary for radical political action. On the contrary, I show that many radical political movements aligned with natural law theory and offer a possible explanation for this phenomenon. The latter point serves as the basis for an alternative way of explaining the political component of legal theory. I propose that we stop thinking of competing theories of law as descriptive or conceptual claims about the nature of law and think of them instead of grounded in different political ideas of legitimate authority. [ABSTRACT FROM AUTHOR]

Many legal philosophers assume that legal non-positivism misconstructs its counterpart, legal positivism; that it destroys law's positivity by allowing the judges to grab directly into the blue sky of justice; that it disempowers the legislator; that it accepts a bizarre notion of an ideal dimension of the law which is either empty or amounts to ideological particularism; that it cannot settle the eternal conflict between real and ideal elements; that it transforms a descriptive-analytical debate about what the law is into a normative-political debate about what the law ought to be. The present article unmasks these assumptions as myths. [ABSTRACT FROM AUTHOR]

The purpose of this work is to analyse and criticise John Gardner's account (or, better still, reductive explanation) of legal positivism originally offered in his famous paper "Legal Positivism: 51/2 Myths", which was originally published in 2001 and then republished in 2012's Law as a Leap of Faith. It will be argued that Gardner's attempt to reduce legal positivism to just one proposition (called "LP*") fails to account for several characteristics of the phenomenon that we usually call "legal positivism". This is especially clear when one contrasts Gardner's attempt with those done by legal philosophers of the Civil Law tradition like Norberto Bobbio and Eugenio Bulygin. One could say that Gardner's attempt is one rooted in the Common Law approach and tradition of legal philosophy but when one compares it with H.L.A. Hart's account one discovers that it is not the case, that accounts such as those by Hart are similar to a certain extent to those of Bobbio and Bulygin. In the end it will be concluded that Gardner's attempt fails due to one mayor problem in his approach: the lack of a due diligence of the history of legal positivism itself, what we will call "the historical approach". [ABSTRACT FROM AUTHOR]

In Legal Positivism: 5½ Myths, John Gardner argued that legal positivism should be understood only as a thesis about the validity of individual norms. This influential view has had the effect of discounting and marginalizing two other important questions about the separation or non-separation of law and morality: regarding the legal status of significantly immoral legal systems, and regarding the role of moral evaluation in the construction of theories about the nature of law. More importantly, there is far less attention now paid than there should be to the interesting theoretical question of the extent to which a position in favor of separation (or non-separation) on one topic entails, or at least strongly supports, a similar view on the other topics. [ABSTRACT FROM AUTHOR]

On 14 July, 2023, a tribute seminar was held at the University of Genoa for the late John Gardner (1965-2019). The aim was to honour and celebrate his life by discussing some of the many topics he addressed in his extensive, diverse and influential academic works. This section collects the contributions of six of the ten key speakers at the seminar. [ABSTRACT FROM AUTHOR]

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