Robert Kirk uses the notion of "raw feeling" to bridge the intelligibility gap between our knowledge of ourselves as physical organisms and our knowledge of ..

In this article the author adduces a non‐positivist argument for a necessary connection between law and morality; the argument is based on the claim to correctness, and it is directed to an attack stemming from Eugenio Bulygin. The heart of the controversy is the claim to correctness. The author first attempts to show that there are good reasons for maintaining that law necessarily raises a claim to correctness. He argues, second, for the thesis that this claim has moral implications. Finally, (...) he attempts to refute Bulygin's objection that the claim‐based argument for non‐positivism boils down to contradiction and triviality. (shrink)

In the debate between positivism and non-positivism the argument from relativism plays a pivotal role. The argument from relativism, as put forward, for instance, by Hans Kelsen, says, first, that a necessary connection between law and morality presupposes the existence of absolute, objective, or necessary moral elements, and, second, that no such absolute, objective, or necessary moral elements exist. My reply to this is that absolute, objective, or necessary moral elements do exist, for human rights exist, and human rights exist (...) because they are justifiable. (shrink)

The author outlines his thesis that legal discourse is a special case of general practical discourse (Sonderfallthese) and develops it as an attempt to cover both the authoritative, institutional, or real and free, discursive, or ideal dimension of legal reasoning. On this basis, he examines the objections raised by Habermas (1996) to the special case thesis. First, he discusses the reduction of general practical discourse to moral discourses (genus proximum problem) holding that the former is a combination of moral, ethical, (...) and pragmatic arguments within the priority of just; second, he examines the objection that general practical arguments change their character or nature when employed in legal contexts (subset and specification problem) and the related problems concerning legal validity and unjust law. He concludes proposing a procedural (opposite to a coherential) integration of general practical arguments in the legal context. (shrink)

In this article, I take up two arguments in favor of the discursive model of legal argumentation: the claim to correctness argument and the dual nature thesis. The argument of correctness implies the dual nature thesis, and the dual nature thesis implies a nonpositivistic concept of law. The nonpositivistic concept of law comprises five ideas. One of them is the special case thesis. The special case thesis says that positivistic elements, that is, statutes, precedents, and prevailing doctrines, are necessary for (...) law in order to achieve legal certainty. Without this, law would not be as perfect as it could possibly be. But it says, at the same time, that this alone would not be enough to fulfill the claim to correctness. The claim to correctness refers not only to the real dimension of law, defined by statutes, precedents, and prevailing doctrines, but also to its ideal dimension, defined, first and foremost, by justice. The special case thesis is my oldest thesis. It has remained an essential element of my system over the years. Its connection with four other theses—the Radbruch formula, the human rights thesis, the idea of deliberative democracy, and principles theory—does not change this at all. On the contrary, this connection has lent greater strength to the special case thesis. (shrink)

According to the author there is no doubt that one has to distinguish between the justification and the application of norms. Problems are seen only to arise if one asks what exactly the distinction is and which consequences have to be drawn from it. Recently, Klaus Günther, in particular, has searched for this distinction and connected it with far‐reaching conclusions concerning the theory of norms, arguments, and morals. His theses are the object of the author's considerations.

This book argues that the primary function of human thinking in language is to make judgments, which are logical-normative connections of concepts. Robert Abele points out that this presupposes cognitive conditions that cannot be accounted for by empirical-linguistic analyses of language content or social conditions alone. Judgments rather assume both reason and a unified subject, and this requires recognition of a Kantian-type of transcendental dimension to them. Judgments are related to perception in that both are syntheses, defined as the (...) unity of representations according to a rule/form. Perceptual syntheses are simultaneously pre-linguistic and proto-rational, and the understanding makes these syntheses conceptually and thus self-consciously explicit. Abele concludes with a transcendental critique of postmodernism and what its deflationary view of ontological categories—such as the unified and reasoning subject—has done to political thinking. He presents an alternative that calls for a return to normativity and a recognition of reason, objectivity, and the universality of principles. (shrink)

Law's Ideal Dimension provides a comprehensive account in English of renowned legal theorist Robert Alexy's understanding of jurisprudence, as expanded upon from his publications A Theory of Legal Argumentation (OUP 1989), A Theory of Constitutional Rights (OUP 1985), and The Argument fromInjustice (OUP 1992).The collection is divided into three parts. Part One concerns the nature of law: it explores its real and ideal dimensions and how the ideal dimension of law is sometimes employed but does not play a systematically (...) important role. Part Two discusses constitutional rights, human rights, andproportionality. It defends the construction of constitutional rights as principles against objections raised by the rule construction and elaborates on the nature of constitutional rights as well as the mathematical balancing of those rights. Part Three concerns the relation between argumentation,correctness, and law. The author concludes this volume with a biographical reflection. (shrink)

This paper has three parts. The first outlines the history of Nestorianism. From the end of the fifth century all the way into the thirteenth century, quite a large population—in fact most Christians in Asia—belonged to branches of the Nestorian church. The second part provides a brief biography of Nestorius, after whom this church was named. The third part explores two elements of Nestorius’s christology, as they are found in his posthumously discovered theological writings. Does Christ have one nature or (...) two, and if two, how can one person have two natures? To what extent was Adam, the first man, created for a role that Christ eventually fulfilled? (shrink)

These are the answers I gave to Brian Bix, Peter Koller, Ralf Posher, Torben Spaak, Timothy Endicott, and Jan Sieckmann at the end of a splendid conference day in 2018. The critique given to me concerned important aspects of three main themes in my work: the claim to correctness, human and constitutional rights, and the ideal dimension of law. In the last decades I have attempted to connect these themes systematically. The result is the idea of democratic constitutionalism as an (...) institutionalization of practical reason. (shrink)

Bender, Robert Review of: Women in Cambridge: A Men's university - though of a mixed type, by Rita McWilliams-Tullberg, Gollancz 1975, 255 pp.

The rational choice assumption that any chosen behavior can be understood as optimizing material self?interest is not borne out by psychological research. Expressive motives, for example, are prominent in the symbols of politics, in social relationships, and in the arts of persuasion. Moreover, instrumentality is a mindset that is learned (perhaps overlearned), and can be situationally manipulated; because it is valued in our society, it provides a privileged vocabulary for justifying behaviors that may have been performed for other reasons, and (...) encourages the illusory belief in the universality of rational choice. (shrink)

Disagreements about the success of any given argument often arise because the suppositions of the critic differ from the suppositions of the author of the argument. In maintaining the plausibility of a metaethical argument for theism against the objections articulated by Stephen J. Sullivan, I will probe our differing suppositions with regard to the relation of theological to naturalistic metaethical theories, the starting point for the metaethical argument for theism, and the relation of the qualities of God's will to our (...) obligation to obey God. (shrink)

In 1771, Rousseau was asked to write a constitution for Poland. He replied with The Government of Poland. It is his last political work. At one point he describes the sort of Pole he hopes to produce: his �love of the fatherland . . . makes up his entire existence: he has eyes only for the fatherland, lives only for his fatherland; the moment he is alone, he is a mere cipher; the moment he has no fatherland, he is no (...) more; if not dead, he is worse-off than if he were dead�. On the face of it, this looks more like the description of a problem than any solution. I will explain how the mad patriotism of the Government of Poland is indeed a solution. I will treat it as a response to the general modern problem of �life in others� that Rousseau found endemic to big cities such as Paris, and which he has Saint-Preux detail in his letters from Paris to Julie in Book II of La Nouvelle Heloise. I begin with a short account of life in others, follow this with an account of how patriotism solves this problem, and conclude with an attempt to make Rousseau's patriotism less frightening, more necessary, and slightly more possible than it seems at first glance. (shrink)