The author discusses a number of issues in the theory of legal sources. The first topic is whether sources should be conceived of as acts or texts. The alternatives are connected with two competing theories of legal interpretation (viz., the cognitive theory and the sceptical theory), which entail different concepts of legal rules and law‐making. The second topic is whether a “formal” or a “material” criterion of recognition of sources should be (...) preferred. The third section is devoted to the analysis of rules of change. Four theories of rules of change are discussed, and five kinds of such rules are distinguished. The fourth section concerns judicial law‐making, with special reference to the creation of new legal rules by constitutional courts. (shrink)

In this paper, I ask whether mishpat ivri (Jewish Law) is appropriately conceived as a “legal system”. I review Menachem Elon’s use of a “Sources” Theory of Law (based on Salmond) in his account of Mishpat Ivri; the status of religious law from the viewpoint of jurisprudence itself (Bentham, Austin and Kelsen); then the use of sources (and the approach to “dogmatic error”) by halakhic authorities in discussing the problems of the agunah (“chained wife”), which I (...) suggest points to a theory more radical than the “sources” theory of law, one more akin to the ultimate phase of the thought of Kelsen (the “non-logical” Kelsen) or indeed to some form of Legal Realism (with which that phase of Kelsen’s thought has indeed been compared)? I finally juxtapose an account based on internal theological resources (a “Jurisprudence of Revelation”). Downloadable at at http://www.biu.ac.il/JS/JSIJ/jsij1.html. (shrink)

Proceeding from the insights of Petrażycki, Polish-Russian legal realists distinguished legal theory, legal dogmatics, and legal policy. Legal theory describes legal phenomena in a value-free way and formulates causal laws concerning those phenomena. Legal dogmatics and legal policy are, by contrast, value-laden sciences involving the subject's—i.e., the scientist's—own attitudes toward existing or imagined phenomena: Dogmatics evaluates behaviors based on the subject's adoption of given normative sources as binding, while (...) class='Hi'>legal policy evaluates the effects produced by given NSs based on causal laws and on the subject's goals. PRRs then conceptualize custom as a representation of people behaving in a certain way : We have a custom on the threefold condition that Rc is believed true by a given X, Rc causes the existence of a given normative psychical experience in X, and X expressly refers to—or would refer—to Rc in justifying an NPE. PRRs use the term customary law to refer to legal experiences caused and justified by an Rc. From a theoretical perspective, both the subject's adoption of custom as a binding NS and its truth are irrelevant. It is only the presence of a customary NPE in the X under study that matters. From a dogmatic perspective, by contrast, what matters is whether the dogmatician—qua subject—adopts custom as a binding NS, whether it is true that people behave in a given way bw, and whether bw resembles the behavior that is deontically qualified in the norm under dogmatic evaluation. Finally, from a legal-political viewpoint, PRRs hold that customary law in modern societies, owing to its conservative nature, should be eradicated for the goal of removing inequalities and fostering benevolence. (shrink)

By “legal interpretation” I mean the legally authoritative resolution of questions about what the content of the law is in its application to particular cases. It is the interpretation of legal texts by legally authoritative actors. One aspect of it is epistemological and one is constitutive. The epistemological task is to ascertain the content of laws resulting from previous actions of other legally authoritative sources. The constitutive task is to render an authoritative judgment that itself plays a (...) role in determining what the content of the law is. Sometimes this judgment changes the content of the laws, or legal provisions, that were the focus of the epistemological task. (shrink)

Even good lawyers get a bad rap. One explanation for this is that the professional rules governing lawyers permit and even require behavior that strikes many as immoral. The standard accounts of legal ethics that seek to defend these professional rules do little to dispel this air of immorality. The revisionary accounts of legal ethics that criticize the professional rules inject a hearty dose of morality, but at the cost of leaving lawyers unrecognizable as lawyers. This article suggests (...) that the problem with both the professional rules and the extant accounts of legal ethics is that they treat the role of lawyer as largely uniform, whereas lawyers actually serve several importantly different roles in different contexts. The central insight of the article is that legal ethics must be fundamentally context-sensitive: what lawyers are morally permitted or required to do depends on the background context in which they are working. Additionally, by taking context into account, this article is the first to present a theory of legal ethics as appropriately shaped and constrained by normative political philosophy and norms of political legitimacy. -/- Specifically, the article argues that people act as lawyers in three different contexts: State v. Individual (situations in which the State seeks to apply some general law to a particular individual), Individual v. Individual (situations in which private individuals are engaged in a dispute), and Individual v. State (situations in which individuals object to State conduct on constitutional or other grounds unrelated to the question of whether a general law applies to their particular case); that the value of lawyers, qua lawyers, stems from a different source in each of these contexts; and that a theory of legal ethics must take into account both of these first two claims. This article develops one such theory - the Multi-Context View. To demonstrate how the theory applies in practice, the article applies the Multi-Context View to two significant issues in legal ethics: the ethical issues involved in deciding whether to represent a client and the moral permissibility of the use of tactical delay. (shrink)

This book revisits the theory of the sources of international law from the perspective of formalism.

Considerable attention has been given to the accessibility of legal documents, such as legislation and case law, both in legal information retrieval (query formulation, search algorithms), in legal information dissemination practice (numerous examples of on-line access to formal sources of law), and in legal knowledge-based systems (by translating the contents of those documents to ready-to-use rule and case-based systems). However, within AI & law, it has hardly ever been tried to make the contents of (...) class='Hi'>sources of law, and the relations among them, more accessible to those without a legal education. This article presents a theory about translating sources of law into information accessible to persons without a legal education. It illustrates the theory by providing two elaborated examples of such translation ventures. In the first example, formal sources of law in the domain of exchanging police information are translated into rules of thumb useful for policemen. In the second example, the goal of providing non-legal professionals with insight into legislative procedures is translated into a framework for making available sources of law through an integrated legislative calendar. Although the theory itself does not support automating the several stages described, in this article some hints are given as to what such automation would have to look like. (shrink)

Human biological tissue samples are an invaluable resource for biomedical research designed to find causes of diseases and their treatments. Controversy has arisen, however, when research has been conducted with laboratory specimens either without the consent of the source of the specimen or when the research conducted with the specimen has expanded beyond the scope of the original consent agreement. Moreover, disputes have arisen regarding which party, the researcher or the source of the specimen, has control over who may use (...) the specimens and for what purposes. The purposes of this article are: to summarize the most important litigation regarding the use of laboratory specimens, and to demonstrate how legal theory regarding control of laboratory specimens has evolved from arguments based upon property interests in biological samples to claims that the origins of laboratory specimens have privacy interests in their genetic information that should be protected. (shrink)

A Theory of Universal Democracy empowers cultures and communities across the world to custom design democracy in consonance with their traditional values. For example, the book makes concrete proposals for Muslim countries to democratize their constitutions without accepting Western values and without violating the principles of Islamic law. More importantly, Universal Democracy further develops the idea of Free State, which the author first presented in his previous book, The Extinction of Nation-States (Kluwer, 1996). The proposed fusion of Universal Democracy (...) and Free State is designed to revolutionize the classical theory of government and to offer a new paradigm that accommodates both universality and uniqueness. Scholars, teachers and students of international law, constitutional law, legal theory, and Islamic law will find this book a source of valuable ideas. (shrink)

This book is about the use of legal scholarship by judges. It discusses the possibility that legal scholarship may function as a genuine source of law in modern municipal legal systems. The book advances a number of claims, some conceptual, some empirical, some normative. The major conceptual claims are found in Chapters 2 and 3, where a general account of the notion of a source of law is provided. Roughly, sources of law are documents or practices (...) (e.g. statutes, judicial decisions, official customs) from which norms can be derived that function as sources of content-independent reasons for judges to decide legal cases one way or another. The relevant notion of content-independence is derived (with qualifications) from H.L.A. Hart's jurisprudence. Indeed, the book's analysis of the concept of a source of law relies at various points on Hartian insights about law and legal reasoning. Chapter 4 argues that legal scholarship - or, more precisely, a particular type of legal scholarship that might be described as standard or doctrinal - can be, and indeed is, used as a source of law in modern legal systems. The conclusion that legal scholarship is used as a source of law (and thus as a source of content-independent reasons for action) may come as a surprise to those who associate judicial recourse to legal scholarship with judicial activism. This association is discussed and criticized in Chapters 5 and 6. It is argued that, in spite of a relatively common opinion to the contrary, legal scholarship can be used to mitigate discretion. In fact, it is precisely because it can be used in this way that judges sometimes refer to scholarship deceptively and suggest that it limits discretion in situations in which it really does not. The concluding chapter addresses potential objections not explicitly discussed in earlier chapters.. (shrink)

How do we ensure agents formulating legal statements are not systematically in error? In this paper I assume that the success of legal statements follows from the fact that propositions expressed by legal statements adequately represent legal reality. I argue that the content of legal statements hinges implicetly on the sources of law and methods in which we attribute meaning to these sources. In this regard, I identify the primary obstacle to the success (...) of actions that consist of asserting legal statements as a systematic failure to refer to the proper method of interpretation by the agents formulating these statements. The paper explores several solutions to this challenge, focusing on the solution explaining the success in referring to the proper method of interpretation in virtue of meta-interpretive considerations. Subsequently, the paper discusses a challenge to this solution following from the claim that there are many different theories of meta-interpretation, and there is no fact (neither natural, nor conventional or intentional, anchored in the collective consciousness of society), determining that one of them is more accurate than the other ones. Given all the intricacies, this study focuses on exploring a coherent framework for understanding how different interpretive methods and meta-interpretative theories can be evaluated and applied in legal practice. It seeks to articulate a model that accommodates the diversity of interpretations while striving for a reasoned consensus on how legal texts should be understood and applied. (shrink)

While the study of legal history grew up largely within the confines of the legal profession, it was equally the offspring of Renaissance humanism. Legal humanism, a branch of philology developed by lawyers rather than historians, laid the foundation for the study of legal, institutional, and even some social history. These lawyers based their work on the humanist method of critical reading of original sources, but soon realized that a truly historical view of law also (...) required a systematic understanding of jurisprudence. Their method led them to explore canon and feudal as well as Roman law. Although the legal humanists had no intention of allowing the science of law to be governed by the liberal arts, they did professionalize the study of legal history and thus reshaped historical scholarship in general. This experience demonstrates the importance of interdisciplinary work in history. (shrink)

This volume provides a critical roadmap through the major historical sources of legal semiotics as we know them today. The history of legal semiotics, now at least a century old, has never been written (a non-event itself pregnant with semiotic possibility). As a consequence, its sources are seldom clearly exposed and, as word, object and meaning change, are sometimes lost. They reach from an English translation of the 1916 inaugural lecture of the first Chair in (...) class='Hi'>Legal Significs at the Amsterdam University, via mid 20th century studies on "property" or "contract," to equally fascinating essays on contemporary semiotic problems produced by former students of the Roberta Kevelson Semiotics Roundtable Seminar at Penn State University 2012 and 2013. Together, the materials in this book weave the fabric of semiotics and significs, two names for the unfolding of semiotics in law and legal discourse at least until the second half of the 20th century, and both of which covered a lawyer's focus on sign and meaning in law. The latter is embedded within the cultural imperatives of the civilization that gave these terms meaning and made them an effective tool for the dissection of law, its reconstitution as an instrument to be used by the lawyer to advance the interests of her clients, and for judges as a means to restructure language as a narrative of law whose power could bend behavior to its strictures. Legal semiotics has become an indispensible part of the elite lawyer's toolkit and a fundamental approach to analysis of legal texts. Two previous volumes published in 2011 and 2012 explored the conceptual, methodological and epistemological progress in the field of legal semiotics, the modern forms of semiotics study, and the mechanics of meaning making processes by lawyers. Yet the great lessons of semiotics requires a focus on the origins of the concepts and frameworks that would become contemporary legal semiotics, its origins as an object of the consciousness of meaning making-one whose roots, as lessons for the oracular conversations of law, are expanded in this volume. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:A Theory of International Bioethics: The Negotiable and the Non-NegotiableRobert Baker (bio)AbstractThe preceding article in this issue of the Kennedy Institute of Ethics Journal presents the argument that “moral fundamentalism,” the position that international bioethics rests on “basic” or “fundamental” moral principles that are universally accepted in all eras and cultures, collapses under a variety of multicultural and postmodern critiques. The present article looks to the contractarian tradition (...) of Hobbes and Locke—as reinterpreted by David Gauthier, Robert Nozick, and John Rawls—for an alternative justification for international bioethics. Drawing on the central themes of this tradition, it is argued that international bioethics can be rationally reconstructed as a negotiated moral order that respects culturally and individually defined areas of nonnegotiability. Further, the theory of a negotiated moral order is consistent with traditional ideals about human rights, is flexible enough to absorb the genuine insights of multiculturalism and postmodernism, and yet is strong enough to justify transcultural and transtemporal moral judgments, including the condemnation of the Nazi doctors at Nuremberg. This theory also is consistent with the history of the ethics of human subjects experimentation and offers insights into current controversies such as the controversy over changing the consent rule for experiments in emergency medicine and the controversy over exempting certain clinical trials of inexpensive treatments for preventing the perinatal transmission of AIDS from the ethical standards of the sponsoring country.The Preamble to the Council of Europe’s (1997) Convention on Human Rights and Biomedicine, the most recently ratified code of international bioethics, is noteworthy because it never mentions “principles,” the concept most frequently cited by the fundamentalists as basic to international bioethics. Instead it stresses rights, a concept that has been utterly ignored by the fundamentalist theorists of international bioethics. The Preamble exemplifies a conception of international [End Page 233] bioethics as an ethics of covenants and conventions grounded in human rights. In the full text of the Preamble, the term “rights” appears eight times and the expressions “convention” and “covenant” are used six times; the term “principle” does not appear at all. In this essay, I develop a theoretical framework for international bioethics based on conventions, covenants, and areas of “nonnegotiability”—a concept that serves as a functional analogue to the traditional notion of “human rights.” I also shall argue that, unlike the theory of basic principles central to moral fundamentalism, the theory of negotiated morality appears immune to the multicultural and postmodern critiques of international bioethics that were analyzed in the preceding article in this issue of the Kennedy Institute of Ethics Journal (Baker 1998).Negotiated Moral Order: A Model for International BioethicsReconsidering ContractarianismThe linkage of “conventions” and “covenants” with human rights that is evident in the Council of Europe’s Convention on Human Rights and Biomedicine traces back directly to the moral and political theories of Thomas Hobbes and John Locke. Such philosophers as David Gauthier (1986), Robert Nozick (1974), and John Rawls (1971, 1993) recently have reinvigorated this classic contractarian line of analysis. In this section, I shall reconsider classical contractarian theory from a perspective informed by these more recent analyses.The most riveting feature of all forms of contractarian theory is the metaphor of the contract itself, particularly the legitimating role it accords to assent. Because contractarians look to the assent of those who would be bound by a moral norm as ultimately the sole source of a norm’s legitimacy, the most important corollary of contractarian moral theory is that moral norms are illegitimate insofar as agents either in principle could not, hypothetically would not, or actually will not rationally assent to be bound by them. Contractarians also argue that because legal norms are legitimated by acceptance of the authority of those who promulgate them, the authority of such norms is bounded by the actual or hypothetical assent of the governed. These features of contractarian analysis generate the correlative concepts of human rights and civil rights.Less often remarked, but nonetheless integral to the metaphor of the social contract, is the contractarian recognition that the interests of the [End Page 234] parties who contract to form civil society are naturally in conflict (or, as Hobbes put... (shrink)

History and characteristics of International law -- Foundation, sources and structural principles of International law -- The subjects of International law -- Questions of method and the structure of rules in International law -- The 'Lotus Rule' on residual state freedom -- The effectiveness of International law -- International society or International community? -- The relationship between International law and politics -- The relationship of International law with certain cardinal legal notions.

This paper offers an example of what may be called ‘an aesthetic history of legal and political thought’. Such a task engages in theorising historically the features of aesthetic traditions that enable and further normative inquiry, i.e. an exploration of the norms and values that might contribute to the good life and the common good. The three features offered in this paper as useful to identifying such aesthetic traditions are communality and interactivity, experimentalism, and exemplarity. The paper shows how (...) each of these features is present, in particular ways, in one specific aesthetic tradition, namely the declamatory tradition. Tracing the declamatory tradition back to Ancient Rome, and examining its influence in the English Renaissance, especially in Sir Thomas More’s response to Lucian’s declamatory thema, Tyrannicide, the paper argues that the particular ways in which declamatory practice combines the above three features enables those engaged in it to pursue normative inquiry. The paper argues that the integration of these three features is especially visible in one aspect of declamatory practice, namely the introduction and exchange of colores, i.e. changes in the narrative, introduced by declaimers and their audiences, which shed light on the possible motivation of a character, and thereby also invited shifts in affective allegiance and evaluative perspective. The paper argues that it is in large part through such introduction and exchange of colores that the declamatory tradition enables and furthers normative inquiry, and thus also offers a good reason for including the declamatory tradition in ‘an aesthetic history of legal and political thought’. (shrink)

Natural law has long been considered the traditional source of Roman Catholic canon law. However, new scholarship is critical of this approach as it portrays the Catholic Church as static, ahistorical, and insensitive to cultural change. In its attempt to stem the massive loss of effectiveness being experienced by canon law, the church has to reconsider its theory of legal foundation, especially its natural law theory. Church Law in Modernity analyses the criticism levelled at the church and (...) puts forward solutions for reconciling church law with modernity by revealing the historical and cultural authenticity of all law, and revising the processes of law making. In a modern church, there is no way of thinking of the law without the participation of the faithful in legislation. Judith Hahn therefore proposes a reformed legislative process for the church in the hope of reconciling the natural law origins of church law with a new, modern theology. (shrink)

The study focuses on the translatability of EU terminology into Ukrainian, with a specific emphasis on the term ‘regulation’. It explores the challenges and considerations involved in translating legal terms, particularly within the context of EU legislative acts. The concept of translatability potential is substantiated in the article. It is seen as language pair-dependent, influenced by the availability of similar legal concepts in the target law system, equivalent terms in the target language, and other factors. The research delves (...) into the levels of translatability potential of legal terms, taking into consideration the existence of identical concepts in the target legal system, the mono- or polysemic semantic structure of the source term, and the established translation practices accepted by legal professionals. Based on these criteria, legal terms are classified into categories of high, upper-medium, lower-medium, and low translatability potentials. The article applies these criteria to analyse the translatability potential of the term ‘EU regulation’ in Ukrainian legal discourse. The distinction between legal terms and legal concepts are highlighted, and the concepts are considered to be mental representations associated with linguistic units. The corpus method and concept analysis are employed to analyse the impact of the context on the actualisation of specific components of semantic structure and, correspondingly, specific concepts. The use of the terms in ordinary and legal discourse is under analysis, as well as different Ukrainian translations of ‘regulation’ for each concept it manifests. Finally, the semantic structures of the term ‘EU regulation’ and its Ukrainian translation ‘peглaмeнт (rehlament)’ are compared to reveal the semantic shifts caused by translation. The concept and semantic analyses are conducted to explore the realisation of the translatability potential and see if the best option provided by the potential of the term was selected to meet the high requirements of legal translation. (shrink)

A classic debate in the history of philosophy is that between rationalists and empiricists concerning the “true” source of human knowledge. In legal philosophy this debate has been reflected in the classic opposition between natural law and legal positivist perspectives. Even the currently predominant inclusivist perspectives on the nature of law, such as inclusive legal positivism and inclusive legal non-positivism, are not immune to such a dichotomy. In this paper I attempt to present an understanding of (...) specific cognitive characteristics of prevailing legal theories from the perspective of the theory of psychological types as developed by Carl G. Jung. (shrink)

Human rights are often taken for granted, but "What is the basis of human rights?" This is no easy answer, De Xiao Weiqi, in his 2004 book of this difficult the problem. He considered the following four main theories: First, the external theory: the root cause of human rights outside the law, such as human rights divine theory; Second, the intrinsic theory: the root cause of human rights within the law - law positivism ; three, rationalist approaches: (...) human rights is based on rational intuition ; Fourth, experience-based approaches: human rights from human experience, especially experience the experience of injustice. He made ​​the first three theories are severely criticized, and to promote a fourth to experience-based approaches. This paper points out that although the experience of Germany and Xiao Weiqi theory have many advantages, but it is evidence of human rights legislation are vague and inconsistent standards of the Department, and its invention on human rights can not provide more solid foundation. In fact, these issues are perceived more or less de Xiao Weiqi, he repeatedly pointed out that the need for external to the human rights legal standards, I think the divine rights theory is to provide a basis for human rights may be one of the world. De Xiao Weiqi theory of divine criticism of human rights have a good reminder, but I think it still can not rule out the Christ-centered Christian contemporary human rights theory. Human rights are often taken for granted but in fact the origin or foundation of human rights is not an easy question. Alan Dershowitz tries to tackle this thorny issue in his 2004 book: Rights from Wrongs: A Secular Theory of the Origins of Rights. He mainly considers four theories: 1) externalism, eg, the divine source of human rights theory; 2) Internalism, eg, legal positivism; 3) Rationalism, eg, the claim that human rights are founded upon rational intuitions; 4) Experiential approach, ie, human rights are derived from our historical experience of serious wrongs or injustice. He severely criticizes the first three theories, and defends the fourth. In this article, I will point out that despite quite a few merits of Dershowitz's theory; his criteria for the validation of human rights are vague or even inconsistent. His general stance of constructivism towards moral and human rights claims, moreover, are unable to provide solid foundations for human rights. In fact Dershowitz is to some extent aware of these problems, and he feels that human rights do need an objective external source, if only it is possible. I think the theistic worldview is indeed able to provide this objective external source. Dershowitz has raised a lot of good questions for the divine source theory but I argue that in the end they cannot exclude the possibility of a contemporary Christocentric theory of human rights. (shrink)

Philosophical discussions of legal ethics should be oriented around the generative problem , which asks two fundamental questions. First, how does the lawyer's role generate reasons? Second, what kinds of reasons can this role generate? Every extant theory of legal ethics is based on a solution to the generative problem. On the generative method , theories of legal ethics are evaluated based on the plausibility of these solutions. I apply this method to three prominent theories of (...) legal ethics, finding that none is based on a fully satisfactory solution to the generative problem. This method has important implication for the study of legal ethics. Philosophically, it moves theoretical debates about legal ethics closer to other debates about the sources of normativity, like those concerning promises. Further, this method identifies a realworld dimension to these theoretical debates. Focusing on the generative problem allows for the empirical verification of hypotheses about legal ethics that have, to date, largely been conjectured. (shrink)

In this article, I explore some facets of the roles of legal philosophy on the one hand, theology on the other, in the construction of a theory of Jewish Law (halakhah). I commence with three issues arising primarily from the use of legal philosophy as a model for the construction of a theory of halakhah: (A) the authority system, viewed in terms of a theory of sources; (B) the relationship between law and morality; (C) (...) the judicial role. I then turn to the theological model, noting from the start the conceptual issue of the nature of ‘religious law’ as conceived in the Jewish tradition. Downloadable from downloadable from http://jewishlawassociation.org/resources.htm. (shrink)

The paper addresses the question how descriptive language is used to express legal norms. Sentences we find in legislative acts, i.e. statutes, constitutions and regulations, express legal norms. Linguistically speaking, there are various grammatical and lexical ways of expressing norms, such as imperative mood, modal verbs, deontic verbs, etc. However, norms may also be expressed by descriptive sentences, namely sentences in present or future tense and indicative (declarative) mood (i.e. _The minister determines the tax rate_). In many civil (...) law countries (including Poland), this is a very common, if not the default, form of expressing norms in legislative texts. Often presented as a legal peculiarity, this phenomenon has yet to draw much academic attention. The normative meaning of descriptive sentences is usually attributed to purely pragmatic factors stemming from our shared assumptions about the legal system. However, a closer look reveals that similar grammatical constructions are ubiquitous in everyday communication and in different languages. We tend to utter various sorts of directives using descriptive sentences (_Now we add a spoon of salt to the sauce_; _credit cards are not accepted_). This suggests the possibility for a linguistic (as opposed to exclusively legal) explanation. This paper aims to offer such an explanation. Rather than resorting to formal semantics, so prevalent in legal theory, it borrows from Cognitive Linguistics to reveal the cognitive underpinnings of our surprising tendency to express normativity in descriptive terms. This involves four different, yet complementary, theories. Firstly, the theory of conceptual metaphor by George Lakoff and Mark Johnson which explains the phenomenon in question in terms of the metaphor “ ought is is ”; with “ ought ” as the more abstract target domain and “ is ” as the more concrete, cognitively simpler source domain. Secondly, the theory of speech act metonymy by Panther and Thornburg which presents descriptive legal sentences as referring to various components of the underlying cognitive scenario of obligation. Thirdly, Ronald Langacker’s notion of the virtuality of language as the explanation for non-present, including future, perpetual and directive, uses of the present tense. Fourtly, the notion of normative generics which points to the nominal, as opposed to verbal, structure of descriptive legal sentences as the source of their normativity. (shrink)

The law persists because people have reasons to comply with its rules. What characterizes those reasons is their interdependence: each of us only has a reason to comply because he or she expects the others to comply for the same reasons. The rules may help us to solve coordination problems, but the interaction patterns regulated by them also include Prisoner's Dilemma games, Division problems and Assurance problems. In these "games" the rules can only persist if people can be expected to (...) be moved by considerations of fidelity and fairness, not only of prudence.This book takes a fresh look at the perennial problems of legal philosophy - the source of obligation to obey the law, the nature of authority, the relationship between law and morality, and the nature of legal argument - from the perspective of this conventionalist understanding of social rules. It argues that, since the resilience of such rules depends on cooperative dispositions, conventionalism, properly understood, does not imply positivism. (shrink)

A critical analysis of Kelsen’s theory leads to a broad concept of custom, which covers diverse types of customary norms, where the always required conviction of legal bindingness depends on different types of factual and normative reasons. In it we should include a strict concept of custom or legal usage, derogating custom, custom of general international law, custom that establishes an unwritten constitution, custom that establishes a new written constitution, judicial custom which creates a rule of precedent (...) and custom newly expressed in the judicial application of customary rules. The basic norm could be formulated as a constitutive norm: ‘If the norms created through the first historical constitution are effective, then the first historical constitution are valid.’ It is thus a customary constitutive rule that recognizes the first historical constitution as valid law. Norms which establish sources of law are constitutive rules, they can be customary norms or legislated norms, but if they are legislated, they have their validity recognized by, directly or indirectly, a constitutive customary norm. By using a broad concept of custom as a conventional practice, Hart implies that general recognition of a customary rule, together with the practice that accompanies it, are sufficient conditions of validity. A doctrine of recognition that is arrived at by means of criticism and a rational reconstruction of the doctrines of Kelsen and Hart regains the essential theses of the traditional recognition theory of Bierling and Engisch. (shrink)

In at least two of his writings, F. S. C. Northrop some time ago suggested an interpretation of the spiritual foundations of Oriental and Occidental civilization which he used as a basis for understanding, among other things, their differing approaches to moral and legal order. Rooted primarily in Biblical and Greek sources, the West, he said, has concentrated on and developed the theoretic component of experience. This component is one wherein the nature of things is taken to be, (...) not the directly observable material of sense and immediate experience, but rather that which is designated by theory through the rational construction of hypotheses and theories. Nature, so to speak, is not the nature found in the directly experienced, but that postulated or inferred by reason and science as lying “behind” or “above” direct experience and accounting causally for it. (shrink)

There is a widespread sense that intermediary institutions which made representative democracy function ever since the nineteenth century—political parties and free media—are presently undergoing profound structural transformations. We partly have trouble judging those transformations—will they destroy or strengthen democracy?—because we lack a set of clear normative standards for intermediary powers. The article suggests such standards: institutions should be accessible, accurate, autonomous, assessable, and accountable. A precondition for these attributes to be realized is financial transparency and the empowerment of citizens other (...) than the owners of concentrated wealth to influence intermediary powers. Accordingly, the article also endorses a scheme to put financing into the hands of citizens themselves via a voucher scheme for both political parties and media. (shrink)

Although the declaratory theory is arguably a central feature of common law adjudication, it is widely disparaged: either the law never changes, which is implausible, or it is changed retrospectively, which is unfair and contrary to the rule of law. These common objections are rooted in misconceptions about the nature of law. When we distinguish more clearly between the sources of law, whether in statute or precedent, and the corpus juris, shaped by general principles of justice, the declaratory (...) theory is vindicated. Structured by familiar precedents and principles, the common law offers a framework within which the rule of law is sustained by moral reflection and argument. There is a close analogy with Rawlsian reflective equilibrium. It is only in virtue of an inquiry into justice, guided but not irrevocably bound by past practice, that there is any law to be declared. Legal judgment is precisely a determination of the requirements of justice as they apply in all the circumstances. (shrink)

Modern jurisprudence has typically been presented as a debate between legal positivism and natural law. Though the demise of legal positivism has been touted despite its pre-eminence in past decades, it is clear that there remains a vigorous debate surrounding this theory. It is noteworthy that Hans J. Morgenthau’s legal thought and critique of legal positivism have remained unexplored in the context of this debate. Largely forgotten, his legal thought answers questions that lie at (...) the heart of the natural law and legal positivist debate. It showcases his deeply nuanced understanding of legal and political theory and contains a powerful and insightful commentary on the fundamental problems faced by international law. Building on existing literature, this paper unearths Morgenthau’s critique of legal positivism. It does this by re-examining his works, which address the question of whether moral considerations are relevant to determining the content of the law in force. It brings his legal thought to light, which highlights the artificiality of the division between law and morality and offers a nuanced analysis of problems inherent in international law. Ultimately, the paper challenges the claim that the law can be determined without resorting to moral judgement and shows how Morgenthau’s insights remain relevant to legal positivism and natural law debates today. (shrink)

Critical Legal Theory has conventionally been traced to the social, political, and philosophical movements of the 1960s and, before that, to the early-twentieth-century ‘realist’ critique of modern jurisprudence. In truth, however, its origins go back to classical and pre-modern thought, and to their acknowledgement of the centrality of law in attempts to conceive of the good life, or the just polity—a centrality that is, moreover, also discernible in the recent gravitation of a number of contemporary philosophers and theorists (...) towards law. Against the ‘restricted’ and ‘conservative’ character of modern jurisprudence, Critical Legal Theory constitutes a return to this more general interest in law and legality. Exceeding the limits of jurisprudence, it has, moreover, drawn upon the most ancient and most contemporary traditions of critical thought in order to pursue new ways of understanding, living, and imagining the law. Critical Legal Theory is now an established—if heterogeneous and controversial—field of study, represented by numerous international journals, regional organizations, and global conferences. As the field continues to flourish as never before, this new title in Routledge’s Major Works series, Critical Concepts in Law, meets the need for an authoritative reference work to make sense of a rapidly growing and ever more complex corpus of literature. Indeed, it is a landmark collection of Critical Legal Theory’s principal sources, orientations, movements, and themes. The first volume in the collection illuminates the foundations of Critical Legal Theory in contemporary continental thought, as well as providing an account of its institutional history. Volume II, meanwhile, examines the ways in which Critical Legal Theory has addressed and problematized conventional jurisprudential ideas about law, drawing upon the insights of philosophy, as well as other disciplines. Volume III assembles the best and most influential research to provide an overview of the movements that characterize the field. The scholarship assembled in the final volume brings together the key work to explore a range of substantial themes with which Critical Legal Theorists have engaged. Supplemented with a full index and comprehensive introductions, newly written by the editors, which situate the collected material in the context of more general theoretical traditions, as well as in critical relation to jurisprudence, _Critical Legal Theory_ is destined to be valued by scholars, students, and researchers as a vital resource. (shrink)

The article develops the modern significance of the legal doctrine in the post-Soviet legal system, describes its impact on lawmaking and on judicial practice. The authors argue in favor of the conclusion that the legal doctrine is an independent and important component of the Russian legal system, as it influences structuring and functioning of the legal system, and, being in demand in practice, is implemented in different components of the country’s legal system. In order (...) to strengthen the role and significance of legal doctrine in the post-Soviet space, the authors make a number of certain proposals on consideration of provisions of legal doctrine in lawmaking and in judicial practice. (shrink)

A truly realistic theory of law – the possibility of which is examined in this work – should have the following characteristics. It should be more general than current theories, that is, be applicable to both common law and civil law; in consequence, it should invert the relationship, commonly instituted by positivist theories, between legislation and adjudication. Both in historiography and in legal comparison, of which legal theory is an extension to a higher level of abstraction, (...) adjudication is the central moment of the legal process, while legislation can be seen as one of the many attempts, and perhaps not even the most successful, to limit and control adjudication. An example of the explanatory capacity of a truly realistic theory is the so-called crisis of sources: legislation institutes judges, but they are, ultimately, those who set the hierarchy of sources and the hierarchical position of legislation itself. (shrink)

Expropriation is a hotly debated issue in international investment law. This is the first study to provide a detailed analysis of its norm-theoretical dimension, setting out the theoretical foundations underlying its understanding in contemporary legal scholarship and practice. Jörg Kammerhofer combines a doctrinal discussion with a theoretical analysis of the structure of the law in this area, undertaking a novel approach that critically re-evaluates existing case-law and writings. His approach critiques the arguments for a single expropriation norm based on (...) custom, interpretation and arbitral precedents within international investment law, drawing also on generalist international legal thought, to show that both cosmopolitan and sovereigntist arguments are largely political, not legal. This innovative work will help scholars to understand the application of theory to investment law and help specialists in the field to improve their arguments. (shrink)

No one denies that moral principles figure in legal argument and practice. However, the kind of role morality can or must play in law has been a topic of debate not only between positivists and their critics, but also within the positivist camp. The topic was brought into contemporary prominence by Ronald Dworkin, who in TheModelofRulesI made the provocative observation that the legality of norms appears to depend sometimes on their substantive (moral) merits, and not just on their pedigree (...) or social source. 1 The observation was intended by Dworkin as a challenge to the positivism of H.L.A. Hart. (shrink)

The thrust of this paper addresses how the notion of an author relates to the authority of a law. Drawing from the legal thought of Hobbes, Bentham, and John Austin, the Paper offers a sense of the author as a distinct institutional source of the state. The Paper then addresses the more difficult legal theories in this context: those of HLA Hart, Ronald Dworkin and Hans Kelsen. The clue to the latter as well as the earlier theorists is (...) a presupposed inaccessible author or ghost. The presupposed ghost of the law is crucial to the binding character of a law. (shrink)

The theory of the just price is commonly assumed to have three sources: Political philosophy of Greek antiquity, scholastic ethics of the High Middle Ages, and the Roman law of obligations of late antiquity. While closer inspection confirms this holds for the first two worlds of thought the latter assumption seems ultimately unfounded. The paper claims that the evidence notoriously presented on behalf of that assumption – two rescripts attributed to Roman emperor Diocletian, namely Codex Iustinianus 4.44.2 and (...) 4.44.8 – ultimately points in another direction. Offering both an analysis and an alternative reading of the rescripts an integrated interpretation is given that reconciles them with the “liberalistic spirit of Roman law”. Also, it is explained why, from the point of view of legal and social philosophy, the fact that Roman law refrains from introducing a moral aspect to the institute of price fixing speaks in favour of Roman law rather than against it. [in German]. (shrink)

The thrust of this paper addresses how the notion of an author relates to the authority of a law. Drawing from the legal thought of Hobbes, Bentham, and John Austin, the Paper offers a sense of the author as a distinct institutional source of the state. The Paper then addresses the more difficult legal theories in this context: those of HLA Hart, Ronald Dworkin and Hans Kelsen. The clue to the latter as well as the earlier theorists is (...) a presupposed inaccessible author or ghost. The presupposed ghost of the law is crucial to the binding character of a law. (shrink)

Feenberg’s new book,Technosystem: the social life of reason, makes an important intervention in the study of technological systems by showing that instrumental reason requires value judgement at the moment of its realization in this world. It fosters hope that technological development can be redirected towards the fulfilment of human needs through public interventions of nonexperts. However, Feenberg does not sufficiently engage with the political dilemmas that inevitably accompany these interventions as a result of the formal capitalist bias of the technosystem. (...) The books by Bridle and Bucher underline the importance of confronting these dilemmas as they encounter them in various domains and provide possible ways for dealing with them. (shrink)

Theories of Legal Relations is an astute examination of existing legal systems that explores the notion of legal relationships and frameworks, using various analytical approaches to legal theory including subjectivist, objectivist, psychological and empirical. Emmanuel Jeuland defends the logical anteriority of relationships in law and their universality (e.g. in the new Chinese Civil Code), addressing new issues such as the possibility of legal relationships with natural and artificial entities. He delves into the consequences of (...) these potential relationships in terms of theory of law, legal reasoning and theory of justice. Chapters discuss legal relationships within legal systems globally, including the intention to create a legal relationship in the UK, declaratory judgments in the US, relationship of courtesy in Germany, and the commercial relationship in France. Providing a well-rounded analytical investigation into legal relations involving relational autonomy, this timely book will be an ideal read for both legal and interdisciplinary scholars interested in legal philosophy, society and culture. Other academics concerned with relationships with natural or artificial entities will also find this book to be a stimulating read. (shrink)

The contents include chapters covering: theory of command; theory of sovereignty; evidence of law; theory of legal duty theory of legal sanctions; theory of the legal object; theory of imputation; theory of legal rights; rights related to ownership; foreign rights; codification of the law; & others.

Arthur Kaufmann is one of the most prominent figures among the contemporary philosophers of law in German speaking countries. For many years he was a director of the Institute of Philosophy of Law and Computer Sciences for Law at the University in Munich. Presently, he is a retired professor of this university. Rare in the contemporary legal thought, Arthur Kaufmann's philosophy of law is one with the highest ambitions — it aspires to pinpoint the ultimate foundations of law by (...) explicitly proposing an ontology, a general theory of knowledge and concept of a person. Kaufmann's work derives, first of all, from the thinking of Gustav Radburch, his teacher, and then from ideas of Karl Engish and Hans-Georg Gadamer. The philosophy undertakes to pursue the ultimate foundation of law, law which is understood by Kaufmann, first of all, as a "concrete judgement" that is, what is right in a concrete situation. Justice belongs to the essence of law and "unjust law" is contradictio in adiectio. Kaufmann opposes all those theories, which as the only foundation for establishing just law (Recht) adopt legal norms (Gesetz). In Kaufmann's opinion , such theories are powerless in the face of all types of distortions of law rendered by political forces. He suggests that the basic phenomenon which needs to be explained and which cannot be disregarded by a philosopher of law is so-called "legal lawlessness" ("Gestzliches Unrecht"). "Legal lawlessness" which forms a part of life experience for the people of twentieth century totalitarian states. It proved "with the accuracy of scientific experiment" that the reality of law consists of something more than bare conformity with legal norms. The existence of lex corrupta indicates that law contains something "non-dispositive" which requires acknowledgment of both law-maker and judge. Kaufmann, accepting the convergent concept of truth and cognition, assumes that "non-dispositive" content, emerging as the conformity of a number of cognitive acts of different subjects (inter-subjective communicativeness and verifiability), indicates the presence of being in this cognition. The questions "What is law?" and "What are the principles of a just solution?" lead straight to the ontology of law, to the question about the ontological foundations of law. Kaufmann discerns the ontological foundations of law in the specifically understood "nature of things" and, ultimately, in a "person". He proposes a procedural theory of justice, founded on a "person". In my work, I undertake to reconstruct the train of thought which led Kaufmann to the recognition of a "person" as the ontological foundation of law. In the first part, the conception of philosophy adopted by Kaufmann, initial characteristics of law — of reality which is the subject of analysis, as well as, the requirements for proper philosophical explanation of law posed by Kaufmann are introduced. In the second, Kaufmann's reconstruction of the process of the realisation of law is presented. Next, the conception of analogy which Kaufmann uses when explaining law is analyzed. In the fourth part, Kaufmann's conception of ontological foundations of law is discussed. A critical analysis is carried out in which I demonstrate that the theory of the ontological foundation of law proposed by Kaufmann and the concept of a person included in it do not allow a satisfac¬tory explanation of the phenomenon of "legal lawlessness" and lead to a number of difficulties in the philosophical explanation of law. Finally, the perspectives of a proper formulation of the issue of the ontological foundations of law are drafted in the context of the analyzed theory. My interest is centered on the conception of philosophy adopted by Kaufmann, according to which the existence of the reality is inferred on the basis of a certain configuration of the content of consciousness, whereas at the point of departure of philosophy of law, the data to be explained is a certain process, which is, basically, a process of cognition, while the reality appears only as a condition for the possibility of the occurrence of the process. I wish to argue that the difficulties which appear in the explanation of law are a consequence of the assumed fundamental philosophical solu¬tions, which seem to be characteristic, though usually not assumed explicitly, in philoso¬phy and theory of law dominant at present in continental Europe. Thereby, I wish to show the significance of ontological and epistemological solutions to the possibility of a proper formulation of the problems posed by philosophy and theory of law. Kaufmann proclaims himself in favour of a philosophy which poses questions about the ultimate foundations of understanding of the reality. In epistemology, he assumes that answers to the questions "What is reality like?" and ultimately "What is real?" are inferred on the basis of uniformity of a cognitive acts of different subjects. Cognition of the reality is accomplished exclusively through the content of conceptual material. The two fundamental questions posed by philosophy of law are "What is just law?" and "How is the just law enacted?" The latter is a question about the process of achieving a solution to a concrete case. Since, in Kaufmann's opinion, law does not exist apart from the process of its realisation, an answer to the question about the manner of realisation of law is of fundamental significance to answering the question: "What is law?" and to the explanation of the question about the ontological grounding of law, which is, as well, the foundation of justice. The proper solution has to take into account the moment of "non-dispositive" content of law; its positiveness understood as the reality and, at the same time, it has to point to the principles of the historical transformation of the content. Law, in the primary meaning of the word, always pertains, in Kaufmann's opinion, to a concrete case. A legal norm is solely the "possibility" of law and the entirely real law is ipsa res iusta, that which is just in a given situation. Determination of what is just takes place in a certain type of process performed by a judge (or by man confronted with a choice). Kaufmann aims to reconstruct this process. A question about the ontological foundation of law is a question about the ontological foundations of this process. In the analyzed theory it is formulated as a question about the transcendental conditions, necessary for the possibility of the occurrence of the process: how the reality should be thought to make possible the reconstructed process of the realisation of law. Kaufmann rejects the model for finding a concrete solution based on simple subsump¬tion and proposes a model in which concrete law ensues, based on inference by analogy, through the process of "bringing to conformity" that which is normative with that which is factual. Kaufmann distinguishes three levels in the process of the realisation of law. On the highest level, there are the fundamental legal principles, on the second legal norms, on the third — concrete solutions. The fundamental principles of law are general inasmuch as they cannot be "applied" directly to concrete conditions of life, however, they play an important part in establishing norms. A judge encounters a concrete situation and a system of legal norms. A life situation and norms are situated on inherently different levels of factuality and normativeness. In order to acquire a definite law both a norm (system of norms) and a life situation (Lebenssachverhalt) should undergo a kind of "treatment" which would allow a mutual conformity to be brought to them. Legal norms and definite conditions of life come together in the process of analogical inference in which the "factual state" ("Tatbestand") — which represents a norm, and in the "state of things" ("Sachverhalt") — which represents a specific situation are constructed. A "factual state" is a sense interpreted from a norm with respect to specific conditions of life. The "state of things" is a sense constructed on the basis of concrete conditions of life with respect to norms (system of norms). Legal norms and concrete conditions of life meet in one common sense established during the process of realisation of law. Mutatis mutandis the same refers to the process of composition of legal norms: as the acquisition of concrete law consists in a mutual "synchronization" of norms and concrete conditions of life, so acquisition of legal norms consists of bringing to conformity fundamental principles and possible conditions of life. According to Kaufmann, both of these processes are based on inference through analogy. As this inference is the heart of these processes it is simultaneously a foundation finding just law and justice. How does Kaufmann understand such an inference? As the basis for all justice he assumes a specifically interpreted distributive justice grounded on proportionality. Equality of relations is required between life conditions and their normative qualification. Concrete conditions of life are ascribed normative qualification not through simple application of a general norm. More likely, when we look for a solution we go from one concrete normative qualified case to another, through already known "applications" of norms to a new "application". The relation between life conditions and their normative qualifica¬tion has to be proportional to other, earlier or possible (thought of) assignments of that which is factual to that which is normative. Law as a whole does not consist of a set of norms, but only of a unity of relations. Since law is a, based on proportion, relative unity of a norm and conditions of life, in order to explain law in philosophical manner, the question about ontological base of this unity has to be asked. What is it that makes the relation between a norm and conditions of life "non-dispositive"? What is the basis for such an interpretation of a norm and case which makes it possible to bring a norm and conditions of life into mutual "conformity"? This is a question about a third thing (next to norms and conditions of life), with respect to which the relative identity between a norm and conditions of life occurs, about the intermediary between that which is normative and that which is factual and which provides for the process of establishing of norms, as well as, finding solutions. It is the "sense" in which the idea of law or legal norm and conditions of life have to be identical to be brought to mutual "conformity". In Kaufmann's opinion such a sense is nothing else but the "nature of things" which determines the normative qualification of the reality. Since establishment of this "sense" appears to be "non-dispositive" and controlled inter-subjectively (namely, other subjects will reach a similar result) so, in conformity with the convergent concept of truth, the "nature of things" must be assigned a certain ontological status. According to Kaufmann this is a real relation which occurs between being and obligation, between the conditions of life and normative quality. However, it should be underlined that from the point of view of the analyzed system the "nature of things" is a correlate of constructed sense, a result of a construction which is based on the principle of consistent understanding of senses ("non-normative" and "normative") and is not a reality which is transcendent against the arrangement of senses. In Kaufmann's theory, inference from analogy appears to be a process of reshaping the concepts (senses) governed by tendency to understand the contents appearing in relations between that which is factual and that which is normative in a consistent way. The analogical structure of language (concepts) and recognition of being as composed of an essence and existence is an indispensable requirement for the possibility of the realisation of law, based on specifically understood inference from analogy. It is necessary to assume a moment of existence without content which ensures unity of cognition. Existence emerges thus as a condition of the possibility of cognition. According to Kaufmann, the "nature of things" is the heart of inference through analogy and the basis for establishment of finding of law. Inference from the "state of things" to a norm or from a norm to the "state of things" always means inference through the "nature of things". The "nature of things" is the proper medium of objective legal sense sought in every cognition of law. In Kaufmann's view, the question whether the "nature of things" is ultima ratio of interpretation of law or is only a means of supplement gaps in law or whether it is one of the sources of law, is posed wrongly. The "nature of things" serves neither to supplement the gaps nor is it a source of law as, for example, a legal norm may be. It is a certain kind of "catalyst" necessary in every act of making law and solving a concrete case. Owing to "nature of things" it is possible to bring to a mutual conformity the idea of law and possible conditions of life or legal norms and concrete conditions of life. In Kaufmann's conception the "nature of things" is not yet the ultimate basis for understanding the "non-dispositiveness" of law. The relation between obligation and being is determined in the process of the realisation of law. Both the process itself and that which is transformed in this process are given. A question about the ontological bases of "material" contents undergoing "treatment" in the process of the realisation of law and about being which is the basis of regularity of the occurrence of the process arises. Only this will allow an explanation that the result of the process is not optional. Thus, a question about reality to which law refers and about the subject realising the law has to be formed. To this, Kaufmann gives the following answer: that which is missing is man but not "empirical man" but man as a "person". A "person" understood as a set of relations between man and other people and things. A "person" is the intermediary between those things which are different — norm and case are brought to conformity. A "person" is that which is given and permanent in the process of the realisation of law. It determines the content of law, is "subject" of law; this aspect is described by Kaufmann as the "what" of the process of realisation of law. A "person" consists of precisely just these relations which undergo "treatment" in the process. On the other hand, a "person" is "a place" in which the processes of realisation of law occur, it is the "how" of normative discourse, a "person" is that which determines the procedure of the process, being "outside" of it. This aspect of a "person" is connected with the formal moment of law. A "person" being, at the same time, the "how" and the "what" of the process of the realisation of law, is also, to put it differently, a structural unity of relation and that which constitutes this relation (unity of relatio and relata). According to this approach a "person" is neither an object nor a subject. It exists only "in between". It is not substance. Law is the relation between being and obligation. That which is obligatory is connected with that which is general. That which is general does not exist on its own, it is not completely real. Accordingly, a "person" as such is also not real. It is relational, dynamic and historical. A "person" is not a state but an event. In Kaufmann's opinion, such a concept of a "person" helps to avoid the difficulties connected with the fungibility of law in classical legal positivism. A "person" is that which is given, which is not at free disposal and secures the moment of "non-dispositiveness" of law. Kaufmann concludes: "The idea (»nature«) of law is either the idea of a personal man or is nothing". Theory points at the structure of realising law and explains the process of adoption of general legal norms for a concrete situation. The analysis has shown however, that in this theory a satisfactory answer to the question about the ultimate foundations of law is not given. It seems that in the analyzed theory the understanding of human being takes place through understanding of law. What is good for man as a "person", what is just, what a "person" deserves may be determined only against the existing system of law. A "per¬son" adopted as a basis of law is the reality postulated in the analysis of the process of the realisation of law. It is a condition of possibility of this process ( explaining, on one hand, its unity and, on the other hand, the non-dispositive moments stated in this process). A "person" in the discussed theory is entirely defined by the structure of law, it can be nothing more than that which is given in law, what law refers to, what law is about. Being, which is a "person", is constituted by relations between people and objects, the relations which are based on fundamental links between norms and conditions of life established in a process of bringing them to conformity. It has to be assumed that man as a "person" is a subject of law only as far as realising law "treats" given senses according to their current configuration. The system of law is a starting point and it describes in content what man is as a "person". Moreover, being a "person" is the condition for entering legal relations. Consistently, Kaufmann writes that "empirical man" is not the subject of law, man is not "out of nature" a "person". People become "persons" due to the fact that they acknowledge each other as "persons" — acknowledging, at the same time, law. This acknowledgement is a con¬dition of existence, of the possibility of the occurrence of process of realisation of law and of constituting legal relations which ultimately constitute a "person". Kaufmann assumes, that law tends towards a moral aim: it may and must create an external freedom, without which the internal freedom to fulfil moral obligations cannot develop. However, this postulate is not based on the necessary structure of human being. From the point of view of his system, it is nothing more than only a condition for the possibility of the occurrence of the process of the realisation of law — lack of freedom would destroy the "how" of this process. Thus, the postulate to protect the freedom of personal acts has to be interpreted, in accordance with the analyzed theory, as a postulate, the fulfilment of which aims ultimately at the accomplishment of the very same process of realisation of law itself and not the realisation of a given man. Kaufmann considers a "person" to be an element which unites the system of law as a whole. Law is a structure of relations, which are interdependent and inter-contingent. Consequently, a "person" which is to form the ontological basis of law has to be entity consisting of all relations. Being also the "how" of the process of realisation of law, if a "person" is to warrant its unity, it has to be a common source for all procedures. Hence, a single "person" would constitute a subject of law. Man appears to be only a moment of a certain entirety, realisation of which should be an aim of his actions. Law, creating a "person" as an object and subject of law becomes a primary entity. In the analyzed theory, the basis for determination of aims which law sets to man is not the allocation of man-subject to something which improves him but rather, such relation is only just constituted by law. A question appears, why should aims set in law also be the aims of "empirical man"? Why is this "empirical man" to be punished in the name of a "person" understood in such a way? If, however, it is assumed that what is man is determined by a system which is superior to him, then man has to be understood only as a part of a whole and there are no grounds to prohibit istrumental treatment of man and so the road to all aspects of totalitarianism might be opened. A problem of the application of created theory to the reality arises, the reality which the theory pretends to explain. Ultimately in his theory Kaufmann does not give any systemic grounds for a radical questioning of the validity of any legal norms. Every new norm becomes an equal part of system of norms. It is only its interpretation and application to given conditions of life that may be disputable, however, this refers to all norms without exception. Cohesive inter-pretation of norms and applications is necessary and sufficient for the acquisition of just law. New norms have to be interpreted in the light of others, correspondingly, the other norms require reinterpretation in the light of the new ones. Contradiction in interpretation of a norm does not form a basis for questioning norms but may serve only to question the manner of their interpretation (understanding). Therefore, no grounds exist to assume any legal norm as criminal or unjust, and in consequence, to question any consistently realised system based on formally, properly established norms, as "legal lawlessness". As law and a "person" do not exist without the process of realisation of law, the role of legal safety becomes crucial as the condition for the possibility of the occurrence of the process of realisation of law. Denying legal safety would be tantamount to negation of law in general (also of moral law) as negation of safety takes away, at the same time, the basis for occurrence of the process of realisation of law. Moreover, any lack of legal safety would also mean lack of a basis for the existence of man as a "person". Kaufmann's thesis, that civil disobedience is legalized only when it has a chance to lead to success, consistent with his concept of the foundations of law, seems to point directly to conclusions which deny the facts taken under consideration and doubtlessly Kaufmann's own intentions, since it would have to be assumed that accordingly there are no grounds to question a legal system in force based on violence which secures its operation. Force finally seems to determine which one of the mutually irreconcilable normative systems constitute law and which does not. A legitimate position is one which leads to success, it is the weaker system which is negated. If so, then basically violent imposition of law is not an act directed against the law in force but, to the contrary, realisation of law. In the context of the new system the former system of law may be talked about as unjust solely in the sense of being incapable of being consistently united with the new. However, at the base, ultimately, lies force which reaffirms differences and excludes from the process of realisation of law certain norms and their interpretations. Kaufmann was aiming at grounding of that which is "non-dispositive" in a certain given framework of interpretation. Nevertheless, he does not provide foundations for the understanding of phenomena, which he undertakes to explain at a point of departure. Instead of explaining them the theory negates the possibility of their existence. The reality postulated in regard to "non-dispositive" moments of the reconstructed process of acquiring law consist of a specifically understood "person", which appears in Kaufmann's conceptions as a condition of the possibility of the realisation of law. According to this approach understanding of a "person" may be only a function of law. To understand "legal lawlessness" and foundations of justice it is necessary to look for such theory of law in which understanding of man as a "person" and being is not a function of understanding of law (in which a "person" is not only a condition for possibility of reconstructed process of realisation of law; for possibility of cognition processes). It seems necessary to start from theory of being and a "person" based on broader experience than the one assumed by Kaufmann and reconstruct the ontological foundations of the process of realisation of law only in such perspective. Kaufmann points out that that to which law refers is ipsa res iusta a concrete relation of man to other people and things. This relation, in his theory, appears to be basically only just constituted by law (normative senses "applied" to conditions of life). Therefore, understanding the relation between a given man and other people and things which constitute the aim of his actions, that is understanding of good, is enacted against the background of constitution of senses; constitution which is a result of a process aiming towards consistent understanding of particular contents (of nor¬mative and non-normative senses). "Being" is secondary towards constructed senses it is only their correlate. The primary relation consists of relation of a man to law (system of norms), while the secondary relation is one of man to something which is the aim of his action (relation between man and good). Considering such approach it is difficult to envision a satisfying answer to the fundamental question: why does law put concrete man under any obligation to obey it? The source of this problem can be seen in reduction of the base for understanding good to content of obligation formulated in auto-reflection. Such reduction seems to be a consequence of Kaufmann's adoption of "convergent concept of truth" and in con¬sequence his recognition of indirect, essentialistic grasp of reality formulated in concepts as the basic and only foundation of theory of being and of law. In view of such an approach, analogy of law, concepts and being is the condition for the possibility of the process of transformation of senses which aims at consistent interpretation of all law. Existence is postulated with respect to the possibility of unity of experience and cognition. However, also a different approach to understanding of the problem of being and good is possible. In spontaneous cognition being is affirmed, first of all, not as a certain, non-contradictory, determined content, but as something existing. Together with a cer¬tain content (passed indirectly through notions) existence of being is co-given. The basis for unity of being is not formed by the consistence of content, as it is in the case of the theories departing from the analysis of cognition processes, but by an act of existence realising content (essence). Such an approach makes it also possible to go beyond the convergent concept of truth. It is worth mentioning that allocation of an agent to good is realised not only by the content of duty. A statement that something is good is primary with respect to determination of this good in content. The recognised good always bears some content, however, there are no reasons to base the concept of good exclusively on indirect, formulated in concepts cognition. As primary, can be adopted the relation of man to good and not of man to law. Determination in content appears to be only an articulation of aspectual cognition of being, as an object of action. In such a case the basis for relative unity of norm and conditions of life is not the "nature of things" understood as correlate of sense but it is relation to good based on internal constitution of man as potential, not self-sufficient being. It does not mean, that the moments of the process of realisation of law singled out by Kaufmann are not important to determination of what is just. He, quite rightly, points to significant role played by norms in the evaluation of concrete situations, in man's search for closer specification in content of good innate to him. The structure of process of determining law for a concrete situation, to a great degree corresponds to the processes of determining law which take place not only in the legal sciences. Kaufmann's analyses of the process of realisation of law show the complexity of the structure of these processes and point towards important moments allowing a better understanding of law and man. Nevertheless, these analyses cannot be a basis for construction of philosophical theory of law, theory which hopes to point out the ultimate, ontological foundations for understanding law. Kaufmann's results may become fully valid only in a more general perspective including broader experience at the point of departure. (shrink)

The article is devoted to the analysis of the legal theories of P.I. Novgorodtsev and B.A. Kistyakovsky, based on the moral philosophy of I. Kant in comparison with the psychological theory of law of L.I. Petrazhitsky. The unity of the positions of Novgorodtsev and Kistyakovsky in focusing on the ethical aspects of law, as well as highlighting morality as the highest principle, is revealed. Attention is paid to the disclosure of neo-Kantian motives in the philosophy of law and (...) in the context of the development of the theory of natural law in Russia. The main content of the article is a consistent analysis of Novgorodtsevʼs ideas in their dynamics, compared with the neo-Kantian philosophy of law of Kistyakovsky. It is emphasized that the psychological theory of the source of Petrazhitskyʼs legal relations is in the same intention of thought with the motives of the Russian neo-Kantians, which allows them to be compared in the history of the development of the Russian theory of law. The modern scientific literature is analyzed in order to identify the problem of comparing different approaches in the history of Russian philosophy of law, in which German transcendental philosophy is one of the key foundations. The question of the independence of Russian scientists in the construction of ethical and legal doctrines is actualized, but, at the same time, a single motive is emphasized with the Kantian provision on the need to establish a general civil society on the principles of a developed system of rules and norms. (shrink)

In this article I am going to propose a modification in the theory of pure restitution, in the hope that such modification will eliminate at least some sources of resistance to the theory, while preserving the theory's distinct place among the philosophical approaches to the institution of legal punishment.

This article aims at linking empirical research to legal theories, in a way that could enhance the benefits of this synergy. Jurisprudence, until recently the usual term for theoretical approaches to law, is now often replaced by the term legal theory. Difference between legal theory and empirical research is reflected in their consideration of subject matters, aims, and methods of research. However, there also exist commonalities between the two, i.e. both aim at comprehending law and (...) legal systems. While legal theory uses philosophical tools, its subject matter still remains a social phenomenon, for social ends. And since empirical research is a means to gather information about law, it could act as a prime source of information for legal theory. While empirical research has its own end to follow, what is missing is, attention to some legal theory, not just general legal theory, but which can also critique philosophical discourses to legality. (shrink)

On the premise that ‘morality’ refers to a system of rules governed by a material categorical imperative, I argue that the sources thesis of legal positivism (and, consequently, its separation thesis) is untenable. This is because it portrays legal obligations as hypothetical imperatives, which they cannot be if a material categorical imperative exists. Legal systems lay down obligation-asserting rules; but any rules are necessarily invalid if they require behaviour contrary to a material categorical imperative. Because the (...) sources thesis attests otherwise, legal positivism presupposes, minimally, that a material categorical imperative cannot be known to exist. I argue, however, that human agents cannot coherently question that a material categorical imperative exists. By definition, they necessarily adopt hypothetical imperatives. But understanding the concept of a hypothetical imperative requires the concept of a categorical imperative to be understood, and understanding having the concept of a categorical imperative postulates that there can be only one categorical imperative, that it exists, and that it is Alan Gewirth’s Principle of Generic Consistency (PGC). This argument only fails if the concept of a categorical imperative is incoherent. In all of this, I follow Kant, except about the material content of the categorical imperative and the nature of free will. (shrink)

This paper develops a novel, neo-republican account of just state surveillance in the information age. The goal of state surveillance should be to avoid and prevent domination, both public and private. In light of that conception of justice, the paper makes three substantive points. First, it argues that modern state surveillance based upon information technology and predicated upon a close partnership with the tech sector gives the state significant power and represents a serious potential source of domination. Second, it argues (...) that, nonetheless, state surveillance can serve legitimate republican ends and so unilateral and private technological attempts to block it may be wrongful. Third, it argues that, despite the serious normative failings of current institutions, state surveillance can be justly regulated and made accountable through a legal liability regime that incentivizes tech company intermediaries to ally with civil society groups in order to safeguard the privacy rights of potential subjects of state surveillance. (shrink)

Linking theses of Plato, Wittgenstein, and Weber, section I argues that identification of central cases and settling of focal meanings depend upon the theorist's purpose and, in the case of theory about human affairs—theory adequately attentive to the four irreducible orders in which human persons live and act—upon the purposes for which we intelligibly and intelligently act. Among these purposes, primacy is to be accorded to purposes which are, as best the theorist can judge, reasonable and fit to (...) be adopted by anyone, the theorist included. Section II defends the reasonableness of practical and moral judgments, against Michael Perry's ultimately nihilist claims that egoism's challenge to moral normativity has gone unanswered and that “reason for A” does not entail “reason for” anyone else. Section III takes up Steven Smith's suggestion that such subjectivism is encouraged by the talk in Natural Law and Natural Rights of “pursuing goods,” talk which is individualistic and neglectful of persons, inimical to an understanding of friendship, and impotent in the face of egoism. Here as elsewhere the key is to grasp that understanding any basic or intrinsic human good is to understand it as good for anyone like me and thus—since as I instantiate and embody a universal, viz. human being—as a good common to anyone and everyone. Section IV argues that common good gives reason for exercise and acceptance of authority, and for allegiance, even in time of breakdown. Section V argues that natural law theory is no more dependent on affirming God's existence than any other theory is, in any of the four orders of theory, but equally that is not safe for atheists. For, like any other sound theory, it suggests and is consistent with questions and answers about its grounds, in this case about the source of its normativity and of the human nature that its normative universals presuppose and affirm; and the answers are those argued for, too abstemiously, in the last chapter of NLNR and, more adequately, in the equivalent chapter of Aquinas. (shrink)