Traditionally legal theorists, whenever engaged in controversy, have agreed on one point: legal norms are par excellence rules which impose obligations. The author examines this assumption, which from another perspective (that of constitutional law, for instance) appears less obvious. In fact, constitutional rules are commoniy empowering norms, norms which do not create duties but powers. To this objection many theorists would reply that empowering rules are incomplete and that they are to be understood as parts of duty‐creating rules. A different (...) position from this traditional stance is that defended in Kelsen's later writings, according to which the fundamental type of norm is the empowering norm. The author discusses Kelsen's three theories on the “ideal form” or structure of the legal norm, with special attention to the third of these, the empowerment theory. (shrink)

Exploring the economic, cultural and political role of slavery in different societies, this volume includes selections from historians, economists and contemporaries - from those enslaved as well as from free members of slave owning societies.

Hans Kelsen's legal philosophy and legal theory is regarded by many in the field as the most influential theory in this century. This volume makes available some of the best work extant on Kelsens' theory, including papers newly translated into English. It covers topics such as competing philosophical positons on the nature of law, legal validity, legal powers, and the unity of municipal and international law, as well as shedding light on Kelsen's intellectual milieu and his intellectual debts.

The exploitation of Einstein's relativity theory on behalf of the relativization of all norms and values is the most conspicuous aspect of a culturally disastrous trend, which, in its various ramifications, is the critical target of this book. Students of history, psychology, sociology and metaphysics will find much food for thought and rich material in this latest of the author's long-standing efforts aimed at the demythologization of science. This book presents fourteen not readily available essays of the winner of the (...) Templeton Prize for 1987. Co-published with the Intercollegiate Studies Institute. (shrink)

ABSTRACTAs the title suggests, I take up three motifs in the article. Legal science, on a narrower reading, examines the law qua object of legal cognition. Substituting legal cognition for traditio...

This work represents Dr. Jaki's rebuttal of contemporary claims about the existence of, or possibility for, man-made minds. His method includes a meticulously documtned survey of computer development, a review of the relevant results of brain research, and an evaluation of the accomplishments of physicalist schools in psychology, symbolic logic, and linguistics.

Authority qua empowerment is theweak reading of authority in Hans Kelsen's writings.On the one hand, this reading appears to beunresponsive to the problem of authority as we know itfrom the tradition. On the other hand, it squares withlegal positivism. Is Kelsen a legal positivist?Not without qualification. For he defends anormativity thesis along with the separation thesis,and it is at any rate arguable that the normativitythesis mandates a stronger reading of authority thanthat modelled on empowerment. I offer, in the paper,a prima (...) facie case on behalf of a stronger reading ofauthority in Kelsen. I go on to argue, however, thatthe textual evidence weighs heavily in favour of theweak reading. Both nomostatics and nomodynamics arepervasive points of view in the Pure Theory of Law,and both reflect species of empowerment as theendpoint of Kelsen's reconstructions. (shrink)

Alexy confronts the legal positivist view in this classic work of legal philosophy. He formulates an accessible concept of law that systematically links classical elements of legal positivism with nonpositivistic legal theory, challenging the prevailing orthodoxies of modern jurisprudence.

This new collection of writings from America's foremost authority on the relationship between science and religion, Templeton Prize-winner Stanley L. Jaki, is an incisive overview of the intersection of science with the most fundamental areas of human culture.

In his introductory section, Christian Dahlman points to various “absurdities” or “self-contradictions” generated by the basic norm. I adduce arguments showing that these “absurdities” or “self-contradictions” do not arise - not, at any rate, from Dahlman’s premises. In his central section, Dahlman sets out three purported problems and claims to resolve them by appeal to one or another of the “three basic norms” that he adumbrates. None of these problems is resolved by Dahlman. Specifically, I adduce arguments showing that the (...) first problem is a straw man of Dahlman’s own making, his resolution of the second problem turns on his confusion of the fictitious basic norm in Kelsen’s post-1960 period with the basic norm of ostensibly normative import in Kelsen’s classical or neo-Kantian phase, and, finally, Dahlman’s resolution of the third problem turns on his confusion of Kelsen’s basic norm with H.L.A. Hart’s rule of recognition. I close with remarks on Kelsen’s own conception of the juridico-theoretical problems he faced. (shrink)

The separability thesis claims that the concept of law can be explicated independently of morality, the normativity thesis, that it can be explicated independently of fact. Continental normativism, prominent above all in the work of Hans Kelsen, may be characterized in terms of the coupling of these theses. Like Kelsen, H. L. A. Hart is a proponent of the separability thesis. And–a leitmotiv–both theorists reject reductive legal positivism. They do not, however, reject it for the same reasons. Kelsen's reason, in (...) a word, is the normativity thesis. Hart, however, grounds his theory in social fact. In place of the reductive thesis of the legal positivist tradition, and in sharp contrast to Kelsen's normativity thesis, Hart defends a non‐reductive version of what the author terms the facticity thesis. (shrink)

Whereas fundamental norms in the juridico‐philosophical tradition serve to impose constraints, Kelsen's fundamental norm—or basic norm —purports to establish the normativist character of the law. But how is the basic norm itself established? Kelsen himself rules out the appeals that are familiar from the tradition—the appeal to fact, and to morality. What remains is a Kantian argument. I introduce and briefly evaluate the Kantian and neo‐Kantian positions, as applied to Kelsen's theory. The distinction between the two positions, I argue, is (...) reflected in an ambiguity in the use of the term “regressive.”. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:THOMAS AND THE UNIVERSE STANLEY L. JAKI Seton Ha,ll Uni1;ersity South Orange, New Jersey FEW SUBJECTS MAY appear so discouragingly vast as Thoma's and the Universe. Few have pmduced a work vaster, let alone deeper, than did Thomrus. As to the universe, its Viastness as well as its depth ·are succinctly stated in Newman's Idea of a University:" There is but one thought greater than that of the (...) universe, and that is the thought of its Maker." 1 There is in aiddition the vastness of the history of the notion of the universe and the.large number of Thomas' interpreters, not all of them immune to prolixity. At any rate, Thomas' best known ~0th-century interpreters offer, as will be seen shortly, at most a brief chapter or a subsection of it on Thomas and the universe with very little on the universe as such. A possible reason for this is that in rthe vast writings of Thomas there is no chapter or question on the universe as suoh. By as such I mean the very core of the notion of the universe, or its 'being the totality of consistently interacting things and their very unity. Thomas, as will 1be seen later, is not iat all silent on this point. Brut if one tries to focate his relevant dicta hy looking through the detailed fables of contents in, say, the Para:na edition of his works, one is not given much guidance. No different is the cruse when one looks through the subject indices. Entries under "universum" are almost as scarce as hen"s teeth. As to entries under " mundus," they.are of no great help on the worild or universe as such. Authors who let their publishers undertake the compilation of the subject index of their books will p11obably agree that the 1J. H. Newman, The Idea, of a, University (London: Longmans, Green & Co., 1888), p. 462. 545 546 STANLEY L. J AKI result is very unsatisfactory in most cases. Few reaiders can really sense the nuances of an author's real concerns, especially if, like Thomas, he has many important concerns. There is in addition the effect of the climate of thought. Under ordinary circumstances one does not pay attention to the air one hreathes in, and much less writes about it extensively, though one still can make incisive though brief references to it. In the intellectual atmosphere surrounding Thomas, the reality o[ the universe :as such 'Was taken to he a most obvious fact. There were debates whether the universe was eternal or temporal; whether it was uncreated or created out of nothing or out of some prime matter; whether any creature could he given a creative power; whether the unive11se was governed providentially; whether it was properly ordered; whether anything occurred in it :by chance or thy accident; whether it was absolutely or relatively the best; whether it could have been otherwise; whether it was necessarily spherical; whether it could move or not-but nobody.felt the need to discuss ·at length whether there was a universe,.that is, a totality of consistently intemcting things 1aH of which verged toward unity. Democritus' claim aibout a large number of universes was, of course, known, but just a;s well known was the illogicality of it. Either those universes interructed with one,another, and in that oase they clearly formed one :single universe, or they were unknowaible to one another in the 'absence of such interaction. 'lihe arguments Aristotle offered 2 on behalf of the unicity of the universe were widely adhered to even in the latter half of the 17th century. The idea of the plurality of worlds that came then into vogue l1ested largely on taking planets and stars for worlds, though hardly ever with the intent of destroying the notion of the universe as a totality. The spontaneous acceptance of a real universe remained part and parcel of Western consciousness until Kant's Critique of Pure Reason began to make a real impact through the rise of Neo-Kantiani:sm fil'om the 1870s on. Reaction to that impact 2 Aristotle, On the Heavens, Bk I, ch. 8-9. THOMAS AND THE... (shrink)

Despite far‐reaching historical and political differences, and despite legal systems that reflect altogether different traditions, the United States and Austria manifest striking similarities where some aspects of their respective development of constitutional review are concerned. For example, on the constitutional review of federalist issues (competing claims of federal and state law), the review power was there from the beginning in both countries. And both countries developed a power of constitutional review reaching to the enactments of the federal legislature. In a (...) brief sketch of aspects of the early development of constitutional review in both countries, the author looks, in particular, to the kinds of arguments made on behalf of constitutional review in the American and Austrian legal systems. (shrink)

Book reviewed:Adolf Julius Merkl, Gesammelte Schriften.

This chapter traces the intellectual relationship between Hans Kelsen and Carl Schmitt. It is well known that the two legal thinkers had sharply contrasting views on sovereignty, democracy, and the role of unity in the law and in politics. Less well known is Schmitt’s proximity, in his very early work, to Kelsen on certain issues, such as the “is”-“ought” distinction and “points of imputation.” This proximity was short-lived, and the discord between their views increased over time, culminating in the Weimar (...) period in their diametrically opposed views on the “guardian” of the constitution. This chapter reconstructs the evolution of this intellectual antagonism, exploring Schmitt’s arguments under four rubrics: subsumption, the narrow interpretation of “material facts,” the political dimension of the judicial decision, and the neutrality of the Reich president. The thrust of Kelsen’s replies is captured in the idea that Schmitt is engaged in political ideology. (shrink)

In discussing Elster's views on the use of counterfactuals and on the nature of contradictions in society, it is contended that, in general, these will not seem especially controversial to those trained in neoclassical economics. Similarly, there is little disagreement in principle between the views of many 'new economic historians' and Elster on the use of counterfactuals in the study of historical problems. In evaluating Elster's critique of several applications of counterfactuals in the 'new economic history', it is argued that (...) the concentration on broad philosophical questions may obscure the point that much recent controversy is based upon disagreements concerning factual issues and the nature of empirical relationships and magnitudes. (shrink)