The aim of The Legal Foundations of Micro-Institutional Performance is to introduce the reader to a different way of thinking about economics that will allow them to both understand and apply legal concepts to economic analysis. To this end, it adopts and further develops Wesley Hohfeld's legal framework of jural (legal) relations as a tool of analysis. This analytical tool, as built into the Legal-Economic Performance framework, provides specific direction in identifying and describing interdependence (...) among economic agents (including rights, duties, liberties and exposure to various acts). The framework adopted and developed in this book relies on the concept of interdependence--that all economic agents are tied together in a legal system given the inherent interdependent nature of transactions in a complex modern global economy. The authors start by developing this framework and then apply it to a variety of settings and empirical examples. Using this new method, economists will be able to reshape their analysis to account for how legal systems and specific legal rules impact economic performance and outcomes. This approach will be of great interest to graduate and advanced undergraduate social science scholars, faculty interested in the intersections of law and economics and the application of legal concepts to impact analysis, and practitioners in the fields of policy, law and economics. (shrink)

1. Understanding.--2. Purpose.--3. Conciliation.--4. Justice.--5. Justice, science and religion as contributions to civilization.--6. Uniformitarian process under supreme law.

Despite the fact that in recent years there has been an active trend of growth of freedom of expression in Kazakhstan, domestic legislative and judicial practice lags far behind international standards. The purpose of the study is to examine the legal situation concerning freedom of expression in Kazakhstan, particularly with regard to the functioning of the media, and to find ways to effectively ensure and adequately regulate this issue in law. The methodological approach is based on the dialectical method (...) used to investigate the content and legal foundations of freedom of speech, synthesis, analysis, and comparative legal method. The results obtained provide an opportunity to analyse the state of national legislation in the sphere of implementation and protection of the right to freedom of expression, as well as to identify the largest gaps in this sphere and their subsequent resolution. The investigation of international legal experience and a comparative analysis allow identifying a significant difference between the legislations of countries with a high index of press freedom and freedom of speech, and Kazakhstan. This research is of critical importance for the development of the human rights and freedoms protection sector, as well as journalism, especially given the current situation in the Republic associated with strict state control over the activities of the media, the inability to express and publicly broadcast opinions and ideas that are unfavourable for the ruling circles. (shrink)

"Provides a definition and defense of individual privacy rights. Applies the proposed theory to issues including privacy versus free speech; drug testing; and national security and public accountability"--Provided by publisher.

The rise of neurotechnologies, especially in combination with artificial intelligence (AI)-based methods for brain data analytics, has given rise to concerns around the protection of mental privacy, mental integrity and cognitive liberty – often framed as “neurorights” in ethical, legal, and policy discussions. Several states are now looking at including neurorights into their constitutional legal frameworks, and international institutions and organizations, such as UNESCO and the Council of Europe, are taking an active interest in developing international policy and (...) governance guidelines on this issue. However, in many discussions of neurorights the philosophical assumptions, ethical frames of reference and legal interpretation are either not made explicit or conflict with each other. The aim of this multidisciplinary work is to provide conceptual, ethical, and legal foundations that allow for facilitating a common minimalist conceptual understanding of mental privacy, mental integrity, and cognitive liberty to facilitate scholarly, legal, and policy discussions. (shrink)

We share Minkoff et al.’s (2024) concern regarding the potential disavowal of pregnant patients’ right to refuse medical interventions, without or against their explicit consent, aimed at preservin...

Essential Legal Knowledge and Writing Skills focuses on the learning needs of students in legal master's programs. This text provides the knowledge and skills students need to succeed in legal studies and their professional careers. It incorporates student feedback and lessons learned in the authors' combined 30 years of experience teaching master's students. This foundational text covers court and government structure and function. It provides tested tools and strategies to read and analyze cases, statutes, and regulations. The (...) ethics chapter addresses the potential pitfalls of ethical issues and the unauthorized practice of law. The book devotes three chapters to writing, acknowledging that industry leaders seek and promote employees with excellent writing skills. A strong emphasis on regulations provides guidance to the many students who work in highly regulated fields. The text highlights specific strategies to research regulations and submit comments to agencies to effect change in their industries. It equips students with the requisite knowledge of the legal world, and the ability to write cogently about business and the law. Essential Legal Knowledge and Writing Skills is a clear, concise, foundational text grounded in best practices. (shrink)

The workshop will discuss new insights in the interaction between logic and law, and more precisely the study of different answers to the question: What role does logic play in legal reasoning? It will present both current challenges and historical perspectives in the relation between logic and law. The perspectives to be discussed involve the interface of the following studies.

Informatics and the Foundations of Legal Reasoning represents a close collaboration between a wide range of disciplines and countries. Fourteen papers, together with a long analytical introduction by the editors, were selected from the contributions of legal theorists, computer scientists, philosophers and logicians who were members of an International Working Group supported by the European Commission. The Group was mandated to work towards determining how far the law is amenable to formal modeling, and in what ways computers (...) might assist legal thinking and practice. The book is the result of discussions held by the Group over two and half years. It will help students and researchers from different backgrounds to focus on a common set of topics of increasing general interest. It embodies the results of work in progress and suggests many issues for further discussion. A stimulating text for undergraduate and graduate courses in law, philosophy and computer science departments, as well as for those interested in the place of computers in legal practice, especially at the international level. (shrink)

Law functions on the basis of some presuppositions of what a person is. The purposes and tasks that are projected on a legal system depend on an understanding of personhood. Also, courts continuously find themselves in situations where they have to define the person or the legal subject, at times with surprising consequences. However, legal theory lacks clear criteria for personhood. We do not know who or what a legal person is, nor do we know what (...) kind of being we want her to be. There is clearly a need for critical examination of the concept of legal personhood. This article takes its inspiration from a historical theory, which sheds light on the complex logics of subjectivity. Reflecting on the thought of Johann Gottlieb Fichte we can contemplate fundamental aspects of personhood, especially in its politico-legal dimensions. It is claimed in this article that even though the legal subject has to be autonomous to some degree, acknowledging otherness inside the self is a compelling way of understanding legal personhood. (shrink)

Hume bequeathed to rational intuitionists a problem concerning moral judgment and the will – a problem of sufficient severity that it is still cited as one of the major reasons why intuitionism is untenable. 1 Stated in general terms, the problem concerns how an intuitionist moral theory can account for the intimate connection between moral judgment and moral motivation. One reason that this is still considered to be a problem for intuitionists is that it is widely assumed that the early (...) intuitionists made little progress towards solving it. In this essay, I wish to challenge this assumption by examining one of the more subtle intuitionist responses to Hume, viz., that offered by Thomas Reid. For reasons that remain unclear to me, Reid's response to Hume on this issue has been almost entirely neglected. I shall argue that it is nonetheless one that merits our attention, for at least two reasons. In the first place, Reid's response to Hume's challenge to rational intuitionism bears a close affinity to the type of response that he offers to Hume's broadly skeptical challenge to realist views regarding our perception of the external world. Since Reid's strategy in the latter case is widely regarded as exhibiting significant promise, it is natural to wonder whether, when applied to the moral domain, this type of strategy displays similar promise. 2 I will suggest that it does. That is, I will suggest that since Reid's broadly nativist position in perception is one well worth considering, then so also is his broadly nativist account of moral motivation. Second, Reid's position regarding moral motivation represents an intriguing attempt to blend a broadly intuitionist view with important insights from the sentimentalist tradition. In this respect, Reid's view is a genuine hybrid position unlike that offered by other intuitionists such as Richard Price. The synthetic character of Reid's position, I claim, gives it a unique type of theoretical richness, since it incorporates some very attractive features of both rational intuitionism and sentimentalism. (shrink)

Throughout Pope Emeritus Benedict XVI's pontificate he spoke to a range of political, civil, academic, and other cultural authorities. These speeches reveal a striking sensitivity to the fundamental problems of law, justice, and democracy. He often presented a call for Christians to address issues of public ethics such as life, death, and family from what they have in common with other fellow citizens: reason. This book discusses the speeches in which the Pope Emeritus reflected most explicitly on this issue, along (...) with commentary from distinguished legal scholars. It responds to Benedict's invitation to engage in public discussion on the limits of positivist reason in the domain of law from his address to the Bundestag. Although the topics of each address vary, they are joined by a series of core ideas whereby Benedict sketches, unpacks, and develops an organic and coherent way to formulate a 'public teaching' on justice and law. (shrink)

In this monograph a fundamental distinction is made between law and juridical thinking. Law is the content of legal rules and the systems of legal rules. Juridical thinking is the handling of the law by the lawyers. To this distinction corresponds a basic distinction between the language of law and the language of juridical thinking, and correlatively, between L-concepts and J-concepts. The monograph is devoted to the J-concepts, especially of technical J-concepts. Four kinds of J-concepts are investigated: morphological (...) J-concepts, those that help us to structure the law in a logical and functional way; topological J-concepts, those that help us to indicate the phenomena to which the law is applicable, and to separate the areas of application for different legal systems; praxeological J-concepts, those that help us to explore the relations between law and action, and methodological J-concepts, those that help us to describe the methods of the professional-juridical handling of the law. The work can be characterised as presenting a lawyer ́s philosophy of law. (shrink)

In order to represent legal knowledge adequately, it is vital to create a formal device that can freely construct an individual concept directly from a predicate expression. For this purpose, a Compound Predicate Formula (CPF) is formulated for use in legal expert systems. In this paper, we willattempt to explain the nature of CPFs by rigorous logical foundation, i.e., establishing their syntax and semantics precisely through the use of appropriate examples. We note the advantages of our system over (...) other such systems and discuss the significance of CPFs with regard to the formalization of legal reasonings using examples from the United Nations Convention for the International Sale of Goods. (shrink)

The foundation (waqf), which is a charity institution that was able to find an application area since the emergence of Islam, has developed over time in Islamic societies and has become a common institution. In the Ottoman Empire, these institutions had incorporated different services into its structure. This expansion has also led to the establishment of many different types and purposes of foundations such as charities; family, animal care, hospice, foodbank and educational institutions and mosques. Types of foundations (...) in which the incomes of the foundation were shared in different ways were also developed in this period. Family foundations are one of the types of foundations established for the purpose to share of income. Family foundations, which are characterized by many different names such as “zürri” (familial), “ehli” (domestic) and “evlatlık” (filial), have been criticized legally for various reasons in the last period of the Ottoman Empire and the Republic period, and their legitimacy has been questioned. This questioning of legitimacy, which started especially with orientalist studies, was also written among Turkish historians and lawyers, and attempts were made to base the claims that family foundations are illegitimate. In time, these criticisms came out of the family foundations and became legally questioning the entire Islamic foundation system. Investigating the justification of these criticisms, which have been popular since the end of the 19th century, is of particular importance for the development of today's foundation system. Because as a result of these criticisms, the foundations, which are one of the most effective institutions that provide social cohesion and that Islam has created and developed, have lost their importance over time and there has been a noticeable decrease in established foundations. Previously established foundations were somehow transferred to individual ownership on legal grounds. Based on these reasons, the study aims to determine the truth of these claims and to offer a critical approach to the debates on the legitimacy of family foundations in Islamic law, thus revealing the legal basis of the foundation system in Islam. In terms of nature, family foundations are a type of foundation for the purpose of the foundation. Although its name is described as family, it indicates a foundation that is broader than the concept of family. In this sense, it refers to foundations established first for private individuals and then for one of the general charity classes. Specially designated persons do not have to be among family members. It is referred to by this name as these foundations are mostly established for family members. When the evidence regarding the legitimacy of these foundations is examined, examples from the practices of the Prophet himself can be seen, as well as general verses from the Qur'an that will be included in the scope of these foundations. On the other hand, there are examples of family waqfs in foundations established by almost all of the Companions. The legitimacy of family foundations is challenged within the framework of four main reasons such as violation of the provisions of legacy, avoiding to be confiscated, preventing the fragmentation of property by the heirs and causing the feudal system and it is claimed to be illegitimate. However, the fact that these foundations have existed in Islamic societies since the golden age, including the Ottoman Empire raises a question about the authenticity of the criticisms. When examining the details of the criticisms, it can be easily seen that there is no question of legitimacy in the real sense, only a misinterpretation arising from misunderstanding. As a result, it will be seen that it is not possible to say that the practices of Muslims throughout history are illegitimate. Family waqfs have taken place in history as an institution that does not contradict the general provisions of Islam, on the contrary, by increasing Islamic foundation culture and social solidarity. It is extremely important for these foundations to find a field of application in social and economic terms now. (shrink)

In the second half of the twentieth and the beginning of the twenty-first century, philosophy marched forward under the slogans of “turns”: the pragmatic turn, the linguistic turn, the realistic tu...

법 규범 자체의 정당성은 물론이고 법의 적용이나 실행 역시 정당해야 한다는 관점에서, 법 실행의 정당성 확보와 법 운용에 대한 윤리적 논의의 중요성에 대해 검토해야 한다. 이에 따라, 법 운용의 핵심에 서 있는 법률가의 윤리적 태도에 대한 논의의 중요성을 언급하면서, 법률가의 윤리적 태도가 어떠냐에 따라 법의 적용과 실행에 대한 도덕적 정당성 여부가 달라질 수 있다는 점에 대해 고찰한다. 그리고 법률가의 전문적 역할을 이해하고 설명할 수 있는 도덕적 기준, 다시 말해 법률가의 직업적 책임에 대한 도덕적 기준이 제시되어야 한다는 차원에서, ‘직업윤리로서의 법조윤리’에 대해 (...) 집중적으로 조명한다. 법조윤리는 법을 전문적 직업으로 삼는 사람들이 지켜야 할 도덕적 규범, 즉 법률가의 직업윤리이다. 그렇다면 직업윤리로서의 법조윤리는 법률가스스로의 직업적 책임에 대한 인식의 필요성과 관련되어 논의되어야 한다. 이런 차원에서, 본고는 법조윤리의 성격을 규명할 뿐만 아니라 법조윤리의 핵심 문제 가운데 하나인 법률가의 역할 규정에 대한 논의에 초점을 맞추고 있다. (shrink)

This paper traces back the sources of our present legal system and of market economy to Medieval Europe which itself benefited from Hellenistic and Roman legal culture and commercial practices. Roman provinces placed Rome in the wider Greek cultural and commercial world. If Aristotle was already transcending the narrow polis-based conceptions of his predecessors, after him Hellenistic Civilization saw the emergence of a new school of philosophy: Stoicism. The legal thought in the Latin West will hence be (...) characterized by Cicero’s writings and its Stoic sources. The Roman legal system was similar to the later northern European customary law and the English common law; Roman law was evolutionary and customary. The rise of Western individualism, whether it dates back to St. Augustine in the fifth century, or to the two Papal Revolutions of Gregory I (establishing the nuclear family as the core of individualism) and of Gregory VII, also played a crucial role in shaping the western legal tradition. The paper describes the main forces that led to this second (Gregorian) revolution. Monasticism is one of them. Benedictine monasticism plaid a leading role in the Peace of God Movement. Hence collective oath-taking by groups in the name of peace was essential in the founding of cities and in the formation of guilds. Europe’s economic resurgence in the Eleventh Century was on the basis of the creation of the rule of law by the Peace of God movement. This movement also allowed for Europe’s agricultural economy to progress. Indeed, the European Middle Ages is one of the major periods of technological innovation in the history of the world. The Gregorian Revolution itself was supported and financed by the Commercial Revolution: Italian bankers sustained Papal reformers against the Emperors. The independence of the Italian cities and provinces reveals one of the most important consequences of the Gregorian Revolution: the polycentricism of Western Europe. This Revolution also witnessed the first large number of political pamphlets in European history; the Gregorian clergy emphasizing a compact theory of government. Soon after, the order of Cistercians was founded (1098) and underwent spectacular growth during the next two centuries. The Cistercians accepted no rents or labor services from feudal donors but would take only full possession of land to do with it as they wished.These monasteries were the most economically effective units that had ever existed in Europe, and perhaps in the world, before that time. Finally, the Magna Carta (1215) that will be so influential on modern political thought can be seen as a direct consequence of the Gregorian Revolution. (shrink)

The paper discusses the Anglo-American philosophy of law of the 20th century, more specifically the philosophy of law of Ronald Myles Dworkin and his criticism of the legal positivism of Herbert Lionel Adolphus Hart. The author presents the history of the criticism of legal positivism in Ronald Dworkin’s philosophy of law and distinguishes historical stages. The subject of the study is the critique of legal positivism but not the Hart-Dworkin debate itself, well known in Western philosophy of (...) law. The reason is that the discussion was conducted between Dworkin and Hart’s supporters but not between Dworkin and Hart by himself. The latter responded to the criticism only after twenty seven years. The article explains why Dworkin chose for his criticism Herbert Hart’s version of legal positivism. This is due to the fact that Dworkin highly appreciated Hart’s positivist theory of law and characterized it as the “most clear.” The article presents the methodological foundations of criticism of Hart’s legal positivism in Dworkin’s philosophy of law. It reveals a methodological divergence between the two legal theories, which directly affects the understanding of the concept of law and its content. Therefore, we can assume that the legal theories of Hart and Dworkin are two competing models of law: Dworkin’s model considers law as a set of rules and principles and Hart’s model acknowledges only rules and court decisions as a source of law. The article also presents the key principles of positivism criticized by Dworkin. These principles, firstly, interpret law as a set of legal rules determined through a special legal criterion, secondly, provide the judge with an opportunity to make a decision “at his own discretion” in a situation not regulated by law, and, thirdly, recognize only legal rights and obligations enshrined in legal regulations. It is important to note that in this article the author describes criticism as an independent phenomenon of legal philosophy with a particular focus on the history and foundations of this phenomenon. (shrink)

Corporate scandals reveal the need for deep transformation of management education so as to profess and promote moral leadership. AACSB and business schools bear partial fault for the recent situation. New 2003 AACSB accreditation standards do highlight business ethics. But the 2003 standards undermine moral, legal and political education by defining “ethics” narrowly and tending to signal pure “infusion” in place of any independent foundation coursework. This paper states a case for an independent foundation course, required universally at undergraduate (...) and graduate levels of business or management education, addressing businesses in societies, legal environment of business and business ethics. Independent foundation instruction by specialists should be followed universally by systematic infusion of these areas throughout business curricula. Neither standalone coursework nor pure infusion is satisfactory. The paper discusses roles, content and location of a required foundation course—followed by systematic infusion—for moral, legal and political education of future managers. (shrink)

Exploring the philosophical foundations of discrimination law as it exists in several jurisdictions, this collection of all new essays bridges the gap between abstract philosophical work on justice and fairness and legal work on specific types of discrimination.

Basing Its Critique Of Western Legal Positivism On Concepts That Are Fundamental To The Indigenous Tradition Of Dharmasastra, This Work Is An Indian Restatement Of The Nature Of Law, Both Of Its Parts And Essence.

This book discusses how to deal ethically with people with Fetal Alcohol Spectrum Disorder in the police, courts and correctional services. Ethical and legal issues associated with the deficits of individuals with a brain disorders such as FASD are surfacing more and more frequently in criminal proceedings. People with FASD often have not been diagnosed and rarely exhibit any visible evidence of the disorder. It has been argued that this invisible disability puts them in a disadvantaged position in the (...) justice system, since the awareness of this condition is limited. The need to identify and to address FASD more effectively and the many ethical issues this raises within the context of the law is increasingly acknowledged within judicial and legislative branches, as well as in government departments, agencies and community programs that provide services to those with FASD and their caretakers and families. This is the first book to give to elaborate on ethical and legal issues of FASD. (shrink)

"Philosophical Foundations of Evidence Law presents a cross-disciplinary overview of the core issues in the theory and methodology of adjudicative evidence and factfinding, assembling the major philosophical and interdisciplinary insights that define evidence theory, as related to law, in a single book. The volume presents contemporary debates on truth, knowledge, rational beliefs, proof, argumentation, explanation, coherence, probability, economics, psychology, bias, gender, and race. It covers different theoretical approaches to legal evidence, including the Bayesian approach, scenario theory, and inference (...) to the best explanation. The volume’s contributions come from scholars spread across three continents and twelve different countries, whose common interest is evidence theory as related to law"-- from publisher's website. (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)

Foundational Texts in Modern Criminal Law presents essays in which scholars from various countries and legal systems engage critically with formative texts in criminal legal thought since Hobbes. It examines the emergence of a transnational canon of criminal law by documenting its intellectual and disciplinary history and provides a snapshot of contemporary work on criminal law within that historical and comparative context. Criminal law discourse has become, and will continue to become, more international and comparative, and in this (...) sense global: the long-standing parochialism of criminal law scholarship and doctrine is giving way to a broad exploration of the foundations of modern criminal law. The present book advances this promising scholarly and doctrinal project by making available key texts, including several not previously available in English translation, from the common law and civil law traditions, accompanied by contributions from leading representatives of both systems. (shrink)

How can there be rights in law? We learn from moral philosophy that rights protect persons in a special way because they have peremptory force. But how can this aspect of practical reason be captured by the law? For many leading legal philosophers the legal order is constructed on the foundations of factual sources and with materials provided by technical argument. For this 'legal positivist' school of jurisprudence, the law endorses rights by some official act suitably (...) communicated. But how can any such legal enactment recreate the proper force of rights? Rights take their meaning and importance from moral reflection, which only expresses itself in practical reasoning. This puzzle about rights invites a reconsideration of the nature and methods of legal doctrine and of jurisprudence itself. Legal Rights argues that the theory of law and legal concepts is a project of moral and political philosophy, the best account of which is to be found in the social contract tradition. It outlines an argument according to which legal rights can be justified before equal citizens under the constraints of public reason. The place of rights in law is explained by the unique position of law as an essential component of the civil condition and a necessary condition for freedom.

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There has been a long history of discussion on the usefulness of formal methods in legal settings.1 Some of the recent debate has focussed on foundational issues in statistics, in particular, how the reference-class problem affects legal decisions based on certain types of statistical evidence.2 Here we examine aspects of this debate, stressing why the reference-class problem presents serious difficulties for the kinds of statistical inferences under consideration and the relevance of this for the use of statistics in (...) the courtroom. We also consider the relevance of foundational statistical issues in the broader context of.. (shrink)

Legal epistemology has been an area of great philosophical growth since the turn of the century. But recently, a number of philosophers have argued the entire project is misguided, claiming that it relies on an illicit transposition of the norms of individual epistemology to the legal arena. This paper uses these objections as a foil to consider the foundations of legal epistemology, particularly as it applies to the criminal law. The aim is to clarify the fundamental (...) commitments of legal epistemology and suggest a way to vindicate it. (shrink)

The foundations of law have been the object ofintense philosophical scrutiny since antiquity.Most importantly, it has been asked whetherthere are really any foundations other thansheer force to be found once more comfortingillusions are abandoned. This paperinvestigates four influential theorists ofradical legal philosophy and postmodern thought who dealwith this problem in comparable ways despitetheir different theoretical outlooks. Themerits of these theories having been assessed,mentalism in ethics and law is introduced as apossible alternative to both the widespreadfoundationalism of the (...) past and theanti-foundationalism of the postmodern present. (shrink)

Hans Kelsen and Max Weber are conventionally understood as initiators not only of two distinct and opposing processes of concept formation, but also of two discrete and contrasting theoretical frameworks for the study of law. _The Foundation of the Juridical-Political: Concept Formation in Hans Kelsen and Max Weber _places the conventional understanding of the theoretical relationship between the work of Kelsen and Weber into question. Focusing on the theoretical foundations of Kelsen’s legal positivism and Weber’s sociology of law, (...) and guided by the conceptual frame of the juridico-political, the contributors to this interdisciplinary volume explore convergences and divergences in the approach and stance of Kelsen and Weber to law, the State, political science, modernity, legal rationality, legal theory, sociology of law, authority, legitimacy and legality. The chapters comprising _The Foundation of the Juridical-Political _uncover complexities within as well as between the theoretical and methodological principles of Kelsen and Weber and, thereby, challenge the enduring division between legal positivism and the sociology of law in contemporary discourse. (shrink)

Legal institutions are created at a certain point in time, intended to be applied to ‘life’ as it is perceived at the specific moment when they are elaborated and cast into legal form. As a result, legal institutions always already refer, in their original design, to a certain normality, but between the moment of creation of a legal institution and its application to future situations there is always a certain time lag. Some legal institutions—referred to (...) in the paper as “legal survivals” –outlive the epoch in which they were created and continue their legal life long after the conditions which lead to their creation had, in the meantime, disappeared. The aim of this paper is to put forward an archaeologico–genealogical perspective on legal survivals not only as a method of studying continuity of law and the resilience of juridical form, but also as a line of enquiry capable of enriching our understanding of the juridical in its relation to the changing circumstances of life. The study of legal survivals allows to combine three aspects of legal continuity: firstly, the continued use of the same legal forms in different circumstances and for different purposes, whereby the same juridical form is filled with different socio-economic substance; secondly, the gradual adaptation of legal forms to new circumstances; thirdly, the emergence of new legal forms in close reference to old ones. The study of legal survivals allows to address the foundations of law’s claims to authority, based on stability and predictability of juridical forms. It also reveals the complex and multilayered nature of legal form which effectively has the structure of a palimpsest. (shrink)

Efficient thinking is the foundation of efficient operation. The correct definition of concepts, especially the basic ones for a given field, in order to reach the truth, is a condition for the development of science and its social utility. The Petrażycki’s research methodology of law is a thoroughly modern method, as it enables effective examination of the accuracy of contemporary legal theories created after Petrażycki’s input. A model contemporary theory susceptible to an examination through the research methodology of law (...) by Petrażycki is the normative theory of legal rules and non-legal standards by Dworkin. For this purpose some falsifications will be subject, i.e. selected ad hoc among many others, two important theories of normative law theory Dworkin. The first one is the thesis classifying legal norms into two groups of norms, namely legal rules and non-legal standards. The second one is a thesis about the existence of who are capable of discovering and issuing lawful and, at the same time, fair court decisions, which are also the only ones for resolving particular court disputes. Unfortunately, owing to the seemingly cognitive research methodology of Petrażycki, both Dworkin’s deformed division of legal norms as well as Dworkin’s Hercules judges - cannot stand the test of authenticity. Due to the Petrażycki’s methodology, the legal-normative theory of Dworkin does not lose an innovative outlook on the existence of social norms, which are being discovered by judges in the jurisprudence, indifferently to the doubts over their proper classification. Moreover, Dworkin’s theory is placed between naive theories, regardless of whether they are considered realistically naive theories or nihilistically naive theories A few random reflections on the well-known work of Dworkin with the help of Petrażycki’s methodology serve to provide a new perspective on the contemporary legal normativity. (shrink)