As many disciplines in the humanities have experienced a focus on culture's impact in recent decades, questions surrounding the significance of media such as writing, print, and computer networks have become increasingly relevant. This book seeks to demonstrate that a media and cultural theory perspective can also be highly productive for legal theory. Thomas Vesting approaches law as an artificial and constructive element within culture and emphasizes the many possibilities that varied forms of media have opened to law, from (...) oral history through to scripture, print and modern day digital networks. While providing historical examples for these theoretical assumptions, the connections between media and law are reconstructed in a practical way and with an eye toward the future. The book closes with an analysis of our present age as a network culture and discusses how this metaphorical framework can be of use in thinking about issues such as constitutionalism, human rights, the state, democracy and education. 'Legal Theory and the Media of Law' will be of great interest to legal, cultural and media theorists as well as academics of politics, sociology and philosophy" -- Back cover. (shrink)

Paradox and origin : on the structure of legal communication -- History, law and hermeneutic self-reference -- Self-mastery and the conversion of force : an ethics of freedom -- The social metaphysics of law : Vico's communicative body and the paradoxical grounding of freedom and authority -- The creative formation and foundation of society's law : on the nature of poetic wisdom -- Between freedom and authority : Vico's history of roman law -- The technique of command : on (...) the problem of freedom in Weber's sociology of law. (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)

Unlike other works in philosophy of law, which focus on the nature of law in the abstract, this comprehensive anthology presents law as a "process," part and parcel of a system of government and defined constitutional procedures. Using the U.S. legal system as a model, it establishes the basis of law in political theory, then presents substantive issues in private and public law, illustrated throughout with important political documents and court cases and stimulating readings in history, law, and (...) philosophy. The editor's detailed critical commentary, notes, and study questions make these materials accessible and useful for a wide range of readers seeking a deeper understanding of private and public law and the nature of the political process. (shrink)

More than any other legal philosopher in the Anglo-American jurisprudence of the 1970s and 1980s Joseph Raz defined with analytical clarity the parameters for a theory of the limits of laws and legal systems. This work was foundational not only for those wishing to defend such theory but also for others (like myself) who took a systematic approach to challenging it. In laying out the conditions for a limited understanding of laws and legal systems, the early works (...) of Raz also reveal the conditions that must be met for its critique. By reference to Raz, the first paragraph of my PhD dissertation, submitted in July 1991, declared a challenge to the notion of both a limited legal system and the boundedness of individual legal rules and principles. In this sense, it contains clear echoes of the thesis of the limits of law as expounded by Raz. In my critique of the limits of law, I did not follow the Anglo-American tradition, but rather postmodern, notably deconstructive, thought. My aim was to argue for the intrinsically plural and—at that stage _de_-limited—nature of laws and legal systems. It was a further 25 years before I argued more forcefully in favour of an _un_limited aspect to law. Nonetheless a recurring obsession with the question of the limits of law and its relationship to the different notions of legal plurality has defined essentially all my work in legal philosophy. In this paper, I will trace the connections to these early works of Raz and their resonance in my subsequent works. A critical questioning of the limits of law in my view remains essential to a generative view of law appropriate to the 21st century—that is a view of law that is intrinsically open to modern imperatives of decolonisation, anti-hierarchical social relationships, and care for our living planet. This article is a lightly referenced and slightly expanded version of a keynote lecture delivered online as part of the workshop ‘Plural Visions of Law—the Legacy of Joseph Raz’ hosted by York University, 11 May 2023. (shrink)

My analysis here is an attempt to bring out the main through-line in the development of Bulgarian philosophy of law today. A proper account of Bulgarian philosophy of law in the 20th century requires an attempt to find, on the one hand, a solution to epistemological and methodological problems in law and, on the other, a clear-cut influence of the Kantian critical tradition. Bulgarian philosophy of law follows a complicated path, ranging from acceptance and revision of Kantian (...) philosophy to the development of interesting theories on the logic of legal reasoning. (shrink)

The manual represents the evolution of the concept of law from antiquity to the end of XX century. It also describes some important Anglo-American directions in the philosophy of law, which are important for developments of Ukrainian legal system (legal positivism, naturalism, realism, criticism, feminism, economical theory of law, postmodernism, etc. The main text is supplemented with excerpts from the writings on the philosophy of law, which are little known for Ukrainian readers. The audience of textbook (...) is students, educators, jurists and lawyers, legislators, and public officials. -/- Contents in English. (shrink)

The problem of the individuation of laws, identified by Bentham, is dismissed as irrelevant to legal philosophy by some commentators. This paper presents individuation as crucial for understanding the cognitive processes underlying legal interpretation. It draws on the work of Maciej Zieliński and Teun van Dijk to show that legal interpretation is based on deriving legal rules qua semantic macrostructures from a legal text treated as a complex discourse. The Zieliński/van Dijk model also lends (...) theoretical support to the interpretation-construction distinction by explaining, in linguistic terms, the processes that take place during construction. (shrink)

The paper defends an interactive theory of the distinctiveness of criminal law. It argues that criminal law’s distinctive behavior can be connected to the interaction between five traits: it is an institutional practice administered by a large and special bureaucracy, playing a substantial role in authorizing the use of coercive police force, leading to a harsh sanctioning regime linked, at least in part, with core wrongs and notions of personal responsibility. Although none of these features is exclusive to criminal law, (...) their interaction leads to modes of behavior that set it apart from other institutions. The paper argues that putting attention on the effects of this interaction provides us with powerful tools to both understand and asses the value and problems of criminal law. (shrink)

In a circulated but heretofore unpublished 2001 paper, I argued that Leiter's analogy to Quine's 'naturalization of epistemology' does not do the philosophical work Leiter suggests. I revisit the issues in this new essay. I first show that Leiter's replies to my arguments fail. Most significantly, if — contrary to the genuinely naturalistic reading of Quine that I advanced — Quine is understood as claiming that we have no vantage point from which to address whether belief in scientific theories (...) is ever justified, it would not help Leiter's parallel. Given Leiter's way of drawing the parallel, the analogous position in the legal case would be not the Legal Realists' indeterminacy thesis, but the very different position that we have no vantage point from which to address whether legal decisions can ever be justified. I then go on to address the more important question of whether the indeterminacy thesis, if true, would support any replacement of important legal philosophical questions with empirical ones. Although Ronald Dworkin has argued against the indeterminacy thesis, if he were wrong on this issue, it would not in any way suggest that the questions with which Dworkin is centrally concerned cannot fruitfully be addressed. The indeterminacy thesis is a bone of contention in an ordinary philosophical debate between its proponents and Dworkin. Of course, if the determinacy thesis were true, no one should try to show that it is false, but this triviality lends no support to the kind of replacement proposal that Leiter proposes. I conclude with some general reflections on naturalism and philosophical methodology. (shrink)

This volume critically discusses the relationship between democracy and constitutionalism. It does so with a view to respond to objections raised by legal and political philosophers who are sceptical of judicial review based on the assumption that judicial review is an undemocratic institution. The book builds on earlier literature on the moral justification of the authority of constitutional courts, and on the current attempts to develop a system on "weak judicial review". Although different in their approach, the chapters all (...) focus on devising institutions, procedures and, in a more abstract way, normative conceptions to democratize constitutional law. These democratizing strategies may vary from a radical objection to the institution of judicial review, to a more modest proposal to justify the authority of constitutional courts in their "deliberative performance" or to create constitutional juries that may be more aware of a community's constitutional morality than constitutional courts are. The book connects abstract theoretical discussions about the moral justification of constitutionalism with concrete problems, such as the relation between constitutional adjudication and deliberative democracy, the legitimacy of judicial review in international institutions, the need to create new institutions to democratize constitutionalism, the connections between philosophical conceptions and constitutional practices, the judicial review of constitutional amendments, and the criticism on strong judicial review. (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)

This book presents an analysis of global legal history in Modern times, questioning the effect of political revolutions since the 17th century on the legal field. Readers will discover a non-linear approach to legal history as this work investigates the ways in which law is created. These chapters look at factors in legal revolution such as the role of agents, the policy of applying and publicising legal norms, codification and the orientations of legal writing, (...) and there is a focus on the publicization of law. The author uses Herbert Hart's schemes to conceive law as a human artefact or convention, being the union between primary rules of obligations and secondary rules conferring powers. Here we learn about those secondary rules and the legal construction of the Modern state, and we question the extent to which codification and law reporting were likely to revolutionize the legal field. These chapters examine the hypothesis of a legal revolution that could have concerned many countries in modern times. To begin with, the book considers the legal aspect of the construction of Modern States in the 17th and 18th centuries. It goes on to examine the consequences of the codification movement as a legal revolution before looking at the so-called "constitutional" revolution, linked with the extension of judicial review in many countries after World War II. Finally, the book enquires into the construction of an EU legal order and international law. In each of these chapters, the author measures the scope of the change, how the secondary rules are concerned, the role of the professional lawyers and what are the characters of the new configuration of the legal field. This book provokes new debates in legal philosophy about the rule of change and will be of particular interest to researchers in the fields of law, theories of law, legal history, philosophy of law and historians more broadly. (shrink)

One persistent question in jurisprudence relates to the role of morality in the concept of law. For instance, consider the question of whether unjust statutes are laws. Legal positivists say that they’re laws in every relevant sense, while natural lawyers say that they’re not. This article considers a different answer inspired by recent findings in experimental philosophy: there is one relevant sense in which unjust statutes are laws, but also a different relevant sense in which they aren’t. After (...) considering the ways in which this alternative differs from some of the mainstream theories in general jurisprudence, the article argues that it provides more elegant solutions to two problems that have puzzled legal philosophers in the past: the paradox of customary international law and the shifts in legal discourse over history. (shrink)

This volume provides a forum for some of the best new philosophical work on law, by both senior and junior scholars from around the world. The chapters range widely over issues in general jurisprudence (the nature of law, adjudication, and legal reasoning); the philosophical foundations of specific areas of law (from criminal law to evidence to international law); the history of legal philosophy; and related philosophical topics that illuminate the problems of legal theory.

This volume surveys 150 law books of fundamental importance in the history of Western legal literature and culture. The entries are organized in three sections: the first dealing with the transitional period of fifteenth-century editions of medieval authorities, the second spanning the early modern period from the sixteenth to the eighteenth century, and the third focusing on the nineteenth and twentieth centuries. The contributors are scholars from all over the world. Each 'old book' is analyzed by a recognized specialist (...) in the specific field of interest. Individual entries give a short biography of the author and discuss the significance of the works in the time and setting of their publication, and in their broader influence on the development of law worldwide. Introductory essays explore the development of Western legal traditions, especially the influence of the English common law, and of Roman and canon law on legal writers, and the borrowings and interaction between them. The book goes beyond the study of institutions and traditions of individual countries to chart a broader perspective on the transmission of legal concepts across legal, political, and geographical boundaries. Examining the branches of this genealogical tree of books makes clear their pervasive influence on modern legal systems, including attempts at rationalizing custom or creating new hybrid systems by transplanting Western legal concepts into other jurisdictions. (shrink)

The primary aim of this article is to present the rule of law universalism as a relevant theoretical and socio-political issue that critical legal thought needs to contend with. In order to do so, this issue is described through a Marxist theoretical framework, which aids in identifying the consequences of this universalism. Furthermore, the Marxist theoretical framework is suggested as a countermeasure that allows for going beyond it. The rule of law universalism is analysed as a process connected to (...) establishing hegemony and status quo that affects both the way the law is thought of and practiced. The post-communist context serves in fleshing out some of these consequences. Although the transition is not the main subject of inquiry, it is a starting point to a set of philosophical questions directed towards the rule of law universalism, mainly regarding historical embeddedness and socio-political dependency of the rule of law. The transitional context illustrates the tension between the rule of law treated as a generalized blueprint and the reality it is introduced to. The method of approach to this tension argued for in this paper is Marxian theorization of concept as an interplay between concrete and abstract that underlies historical materialism. This movement within concept is juxtaposed to the universalism. The philosophical investigations are followed by findings from Marxist legal theory that pinpoint the importance of concrete interventions into the legal theory that abate its ever-growing abstractness. In particular, the import of knowledges and practices divorced from the capitalist system is brought into focus. The paper concludes with a brief assessment of the possibility of overturning the rule of law universalism and a discussion on the emancipatory potential of law. (shrink)

Oxford Studies in the Philosophy of Law is an annual forum for some of the best new philosophical work on law, by both senior and junior scholars from around the world. The essays range widely over issues in general jurisprudence, the philosophical foundations of specific areas of law, the history of legal philosophy, and related philosophical topics that illuminate the problems of legal theory. OSPL will be essential reading for philosophers, academic lawyers, political scientists, and historians (...) of law who wish to keep up with the latest developments in this flourishing field. (shrink)

That various legal orders preside in any one jurisdiction has long been seen as evidence of legal pluralism; however, this approach lacks a systematic understanding of history in general, and as such, tells us little about the inner machinations of law’s relation to capitalist development in particular. What is needed instead is a dialectical materialist approach to legal development; for this reason, I tender an uneven and combined development theory of law. Law flexes in concert with ever-changing (...) social relations, or more plainly, law evolves in an uneven and combined manner. More than being mired in the contradictions that are the driving force of the UCD of capitalism, however, law also boasts its own set of contradictions that, if carefully accounted for, helps distinguish the historical evolution of capitalism as a social totality. (shrink)

This is the classic study of the history and continuing philosophical values of the law of nature. D'Entrèves discerned three distinct sources that have contributed to the development of natural law: Roman law teachings, Christian beliefs regarding law, and egalitarian and revolutionary theories of the Enlightenment. Now regarded as a classic work, Natural Law has exercised considerable influence over the course of Anglo-American legal theory in the past forty years. The statements of Clarence Thomas during his 1991 Senate (...) confirmation hearings show that the law of nature still holds powerful appeal in defining judicial rules. In the new introduction, Cary J. Nederman points out both the contemporary value and the historical significance of Natural Law. He also provides the biographical as well as intellectual context for d'Entrèves immense accomplishments. This volume is essential reading for students of legal history, political theory, and philosophy. It will also be of interest to historians. "Few texts provide as concise or as cogent an introduction to natural theory as Alexander Passerin d'Entrèves' Natural Law: An Introduction to Legal Philosophy.... Transaction Publishers has performed a genuine service by bringing out a new edition of Natural Law. D'Entrèves' analysis is clear and penetrating, and will guide the student of natural law to further, fruitful study."--Mitchell Muncy, The University Bookman. (shrink)

“Why are millions of dollars worth of orders being left unpaid?”. With tweets like this questioning brands’ policies, activists advocating for sustainable fashion re-discuss material starting points that are assumed by fashion brands, who argue that they are sustainable because they care about their workers’ conditions. This paper argues that activists use tweets to open _subdiscussions on material starting points_ to engage citizens and consumers, re-discussing factual _data_ that brands take for granted, such as the fact that they provide fair (...) conditions for their garment workers. Activists justify their opening of subdiscussions, often through an argumentative pattern that includes an argument based on the _locus from effects to cause_. They argue that if there are negative effects, the brand cannot claim to care about the conditions of its workers. In discussing how subdiscussions are used by fashion activists, this paper also introduces a conceptualization of Twitter argumentation as a discussion that is not isolated, but is part of a polylogical argumentation that takes place in different venues. For this reason, the argumentation used in tweets is reconstructed as a response to a fashion brand’s communication campaigns around sustainability, which extend beyond the confines of Twitter. As an empirical illustration, this paper is based on the campaign targeting fashion retailer Primark; the dataset includes the brand’s website as well as activists’ tweets. (shrink)

Since the publication of the Universal Declaration of Human Rights in 1948, the language of dignity has become synonymous with discussions of rights at both the domestic and international levels. For some, this has been a welcome development. For others, however, this language of dignity is seen as unnecessarily obscure: serving only to obfuscate these discussions and hindering future progress. This paper lays the groundwork for an understanding of ‘dignity’ in international law. This includes appeals to, and uses of dignity, (...) in international human rights law and international humanitarian law, but also instances that may be less familiar (e.g., the law of foreign sovereign immunity). Ultimately, this paper argues that in international law ‘dignity’ is best understood as a sort of legal status that applies to many different sorts of international legal actors (including, but not limited to, human beings, states, and other international institutions (e.g., courts)). (shrink)

Conscience is an idea that has significant currency in liberal democratic societies. Yet contemporary moral philosophical scholarship on conscience is surprisingly sparse. This paper seeks to offer a rigorous philosophical account of the role of conscience in moral life with a view to informing debates about the ethics of conscientious objection in medicine. I argue that conscience is concerned with a commitment to moral integrity and that restrictions on freedom of conscience prevent agents from living a moral life. In section (...) one I argue that conscience is a principle of moral awareness in rational agents, and that it yields an awareness of the personal nature of moral obligation. Conscience also monitors the coherence between an agent’s identity-conferring beliefs and intentions and their practical actions. In section two I consider how human beings are harmed when they are forced to violate their conscience. Restrictions on the exercise of conscience prevent people from living in accord with their own considered understanding of the requirements of morality and undermine one’s capacity for moral agency. This article concludes with a consideration of how a robust theory of conscience can inform our understanding of conscientious objection in medicine. I argue that it is in the interest of individual practitioners and the medical profession generally to foster moral agency among doctors. This provides a prima facie justification for permitting at least some kinds of conscientious objection. (shrink)

The main aim of this paper is to study the notion of conditional right by means of constructive type theory (CTT) which provides the means to develop a system of contentual inferences rather than of syntactic derivations. Moreover, in line with Armgardt, we will first study the general notion of dependence as triggered by hypotheticals and then the logical structure of dependence specific to conditional right. I will develop this idea in a dialogical framework where the distinction between play-object and (...) strategy-object leads to the further distinction between two basic kinds of pieces of evidence and where meanings is constituted by the interaction of obligations and entitlements. The present paper is based on Rahman (2015). However, though the underlying CTT-analysis is the same, the dialogical reconstruction makes use of a new way of linking dialogical logic and CTT. Introduction. (shrink)

This carefully selected set of readings presents some of the most important articles in the field. The collection is essential reading for anyone with an interest in legal philosophy. Gathers together some of the most important articles in the field of philosophy of law and legal theory. Complements Dennis Patterson's _A Companion to Philosophy of Law and Legal Theory_. Represents essential reading for the beginning law student.

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)

This volume presents a Type Theory of Law (TTL), claiming that this is a unique theory of law that stems from the philosophical understanding of Jung's psychological types applied to the phenomenon of law. Furthermore, the TTL claims to be a universal, general and descriptive account of law. To prove that, the book first presents the fundamentals of Jungian psychological types, as they had been invented by Jung and consequently developed further by his followers. The next part of the book (...) describes how the typological structure of an individual determines their understanding of law. It then addresses the way in which inclusive legal theory can be understood based on this typology. Finally, the book describes the TTL in general and descriptive terms and puts it into context. All in all, the book shows how the integral or inclusive approach to understanding the nature of law is not only in tune with our time, but also relevant for presenting a more persuasive picture of law than the older exclusivist or dualist approaches of strict natural law and rigid legal positivism did. (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.

We submit a normative pragmatic theory of exhorting—an account of conceptually necessary and potentially efficacious components of a coherent strategy for securing a sympathetic hearing for efforts to urge and inspire addressees to act on high-minded principles. Based on a Gricean analysis of utterance-meaning, we argue that the concept of exhorting comprises making statements openly urging addressees to perform some high-minded, principled course of action; openly intending to inspire addressees to act on the principles; and intending that addressees’ recognition of (...) the intentions to urge and inspire creates reasons for addressees to grant a sympathetic hearing to what the speaker has to say. We show that the theory accounts for the design of Abraham Lincoln’s Cooper Union address. By doing so we add to the inventory of reasons why social actors make arguments, continue a line of research showing the relationship of arguing to master speech acts, and show that making arguments can be an effective strategy for inspiring principled action. (shrink)

Photomechanical reprint of papers from 1970 to 1992 mostly in English, some in German or French: Foreword 1–4; LAW AS PRACTICE ‘La formation des concepts en sciences juridiques’ 7–33, ‘Geltung des Rechts – Wirksamkeit des Rechts’ 35–42, ‘Macrosociological Theories of Law’ 43–76, ‘Law & its Inner Morality’ 77–89, ‘The Law & its Limits’ 91–96; LAW AS TECHNIQUE ‘Domaine »externe« & domaine »interne« en droit’ 99–117, ‘Die ministerielle Begründung’ 119–139, ‘The Preamble’ 141–167, ‘Presumption & Fiction’ 169–185, ‘Legal Technique’187–198; LAW (...) AS LOGIC ‘Moderne Staatlichkeit und modernes formales Recht’ 201–207, ‘Heterogeneity & Validity of Law’ 209–218, ‘Leibniz & die Frage der rechtlichen Systembildung’ 219–232, ‘Law & its Approach as a System’ 233–255, ‘Logic of Law & Judicial Activity’ 258–288, ‘Kelsen’s Pure Theory of Law’ 289–293, ‘The Nature of the Judicial Application of Norms’ 295–314; LAW AS EXPERIENCE ‘The Socially Determined Nature of Legal Reasoning’317–374, ‘The Ontological Foundation of Law’ 375–390, ‘Is Law a System of Enactments?’ 391–398, ‘The Uniqueness of National Legal Cultures’ 399–411, ‘Institutions as Systems’ 413–424; LAW AS HISTORY ‘From Legal Customs to Legal Folkways’ 427–436, ‘Anthropological Jurisprudence?’ 437–457, ‘Law as a Social Issue’ 459–475, ‘Law as History?’477–484, ‘Rechtskultur – Denkkultur’ 485–489; w/ Curriculum Vitae & Bibliography, as well as Index & Indexes of normative materials & of names. (shrink)

In their book Commitment in Dialogue, Walton and Krabbe claim that formal dialogue systems for conversational argumentation are “not very realistic and not easy to apply”. This difficulty may make argumentation theory less well adapted to be employed to describe or analyse actual argumentation practice. On the other hand, the empirical study of real-life arguments may miss or ignore insights of more than the two millennia of the development of philosophy of language, rhetoric, and argumentation theory. In this paper, (...) we propose a novel methodology for adapting such theories to serve as applicable tools in the study of argumentation phenomena. Our approach is both theoretically-informed and empirically-grounded in large-scale corpus analysis. The area of interest are appeals to ethos, the character of the speaker, building upon Aristotle’s rhetoric. Ethotic techniques are used to influence the hearers through the communication, where speakers might establish, but also emphasise, weaken or undermine their own or others’ credibility and trustworthiness. Specifically, we apply our method to Aristotelian theory of ethos elements which identifies practical wisdom, moral virtue and goodwill as components of speakers’ character, which can be supported or attacked. The challenges we identified in this case and the solutions we proposed allow us to formulate general guidelines of how to exploit rich theoretical frameworks to the analysis of the practice of language use. (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 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)

From the perspective of Marek J. Siemek’s theory of modernity, one of the most important problem is to include conflicts into institutional framework of the modern society. He reinterprets Hegel’s dialectics of the struggle for recognition by conceptual tools of Hobbes and Marx in order to uncover hidden assumptions and conditions of possibility of the social rationality. For Siemek, law as purely formal, autopoetic social system or social subject, which produces individual subjects, is the first of the conditions of possibility (...) of modernity. The second one is the convergence of formal and material presuppositions of law—or, speaking generally—the convergence of form and content of the social reason. Form and content, facticity and normativity, instrumentality and communicativity are aspects of the process of rationalization andof the only one reason, self-generating in the history. So for Siemek, the Hegelian model of the struggle for recognition gains its theoretical power only when it is interpreted from the perspective of economical, technical and legal rationalization of modernity. Only such perspective is able to construct “the transcendental social philosophy” which starts from critique of “the non-instrumental reason”. (shrink)

The discussion of political normativity is a core controversial issue in Bernard Williams’s realist theory of legitimacy. This article attempts to demonstrate that the political normativity in his theory of legitimacy should be comprehended based on his theory of liberty, where Williams’s notion of the cost in liberty is vital to this picture. It has this status in virtue of the realist characteristics of his theory of legitimacy, of the significance of coercive issues behind this realist theory of legitimacy. Interpreting (...) Williams’s theory of legitimacy from the perspective of the notion of the cost in liberty satisfies an inherent requirement for a realist theory of legitimacy that it should be closely associated with the attitudes of its subjects. For Williams, the normative value of legitimacy ultimately embodied in its realisation of compatible protection for the freedoms of individuals. This protection process is carried out through the political. Moreover, this process reflects a historical self-consciousness, thereby meeting Williams’s insistence that a realistic political theory should have a historical dimension. (shrink)

Nowadays, neo-institutionalistic approaches are prominent in economics, political science, the science of public administration and sociology. There is a general complaint about the vagueness of the concept of institutions and the apparent disparity of phenomena falling under it. This article shows how institutional legal theory provides a typology of institutions as sets of rules and corresponding patterns of regulated behaviour that can help to avert much confusion. The typologys usefulness is tested by applying it to an array of private (...) governance structures distinguished by transaction cost economics. (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)

After a brief sketch of the history of philosophical pragmatism generally, and of legal pragmatism specifically (section 1), this paper develops a new, neo-classical legal pragmatism: a theory of law drawing in part on Holmes, but also on ideas from the classical pragmatist tradition in philosophy. Main themes are the "pluralistic universe" of law (section 2); the evolution of legal systems (section 3); the place of logic in the law (section 4); and the relation of law (...) and morality (section 5). (shrink)

This is the classic study of the history and continuing philosophical values of the law of nature. D'Entreves discerned three distinct sources that have contributed to the development of natural law: Roman law teachings, Christian beliefs regarding law, and egalitarian and revolutionary theories of the Enlightenment. Now regarded as a classic work, Natural Law has exercised considerable influence over the course of Anglo-American legal theory in the past forty years. The statements of Clarence Thomas during his 1991 Senate (...) confirmation hearings show that the law of nature still holds powerful appeal in defining judicial rules. In the new introduction, Cary J. Nederman points out both the contemporary value and the historical significance of Natural Law. He also provides the biographical as well as intellectual context for d'Entreves immense accomplishments. This volume is essential reading for students of legal history, political theory, and philosophy. It will also be of interest to historians. "Few texts provide as concise or as cogent an introduction to natural theory as Alexander Passerin d'Entreves' Natural Law: An Introduction to Legal Philosophy.... Transaction Publishers has performed a genuine service by bringing out a new edition of Natural Law. D'Entreves' analysis is clear and penetrating, and will guide the student of natural law to further, fruitful study."¿Mitchell Muncy, The University Bookman. (shrink)

The topic of the presence, legitimacy and epistemic worth of narrative explanations in different kinds of scientific discourse has already enjoyed several revivals within related discussions in contemporary philosophy of science. In fact, we have recently witnessed a more extensive, more unprejudiced and ambitious attention to narrative modes of making science. I think we need a systematic theoretical framework in order to categorize these different functions of narratives and understand their role in scientific explanatory and justificatory practice. My claim (...) is that some distinctions and analytic tools developed within the field of contemporary Argumentation Theory might be of help. (shrink)

What makes the rule of law so special that it is to conscientiously punish the â oebadâ doers and reward the â oegoodâ onesâ "such that, where there is the rule of law, peace and order are to be expected, so that â oethe rule of law is better than the rule of any individualâ? Take the case of international law, as an illustration. While different international courts have been busy going after the killers of innocent victims in Rwanda and (...) Liberia, they have turned a blind eye to the major powers which have killedâ "on a much larger and more brutal scale, by comparisonâ "innocent civilians in Iraq and Afghanistan, just to cite two current examples. Contrary to the conventional wisdom conveniently held by many in human history, the rule of law has its other side which has not yet been systematically understood, such that the rule of law is neither possible nor desirable to the extent that the defenders of legal institutions in human history would like us to believe. Lest any misunderstanding hastily occur, this is not to imply that the rule of law is absolutely useless, or that the literature in jurisprudence (and other related fields like political philosophy, ethics, law and economics, and the sociology of law) should be dismissed because of its scholarly irrelevance. Of course, neither of these two extreme views is reasonable either. Instead, this book provides an alternative (better) way to understand the nature of law, in relation to its necessity and contingency in the context of justiceâ "while learning from different approaches in the literature but without favoring any one of them (nor integrating them, since they are not necessarily compatible with each other). In the process, this book offers a new theory to transcend the existing approaches in the literature in a new directionâ "in that, in the end, there is no justice without injustice and that it will be transcended too. This seminal project, if successful, will fundamentally change the way that we think about the nature of law, from the combined perspectives of the mind, nature, society, and culture, with enormous implications for the human future and what I originally called its â oepost-humanâ fate. (shrink)

The first-ever multivolume treatment of the issues in legal philosophy and general jurisprudence, from both a theoretical and a historical perspective. The work is aimed at jurists as well as legal and practical philosophers. Edited by the renowned theorist Enrico Pattaro and his team, this book is a classical reference work that would be of great interest to legal and practical philosophers as well as to jurists and legal scholar at all levels. The work is (...) divided in two parts. The theoretical part, consisting of five volumes, covers the main topics of the contemporary debate; the historical part, consisting of six volumes, accounts for the development of legal thought from ancient Greek times through the twentieth century. The entire set will be completed with an index. Volume 6: A History of the Philosophy of Law from the Ancient Greeks to the Scholastics 2nd revised edition, edited by Fred D. Miller, Jr. and Carrie-Ann Biondi Volume 6 is the first of the Treatise’s historical volumes and is dedicated to the philosophers’ philosophy of law from ancient Greece to the 16th century. The volume thus begins with the dawning of legal philosophy in Greek and Roman philosophical thought and then covers the birth and development of European medieval legal philosophy, the influence of Judaism and the Islamic philosophers, the revival of Roman and Christian canon law, and the rise of scholastic philosophy in the late Middle Ages, which paved the way for early-modern Western legal philosophy. This second, revised edition comes with an entirely new chapter devoted to the later Scholastics and an epilogue on the legacy of ancient and medieval thought for modern legal philosophy, as well as with updated references and indexes. (shrink)

Vice crimes, crimes prohibited in part because they are viewed as morally corrupting, engage legal theorists because they reveal importantly contrasting views between liberals and virtue-centered theorists on the very limits of legitimate state action. Yet advocates and opponents alike focus on the role law can play in suppressing personal vice; the role of law is seen as suppressing licentiousness, sloth, greed etc. The most powerful advocates of the position that the law must nurture good character often draw on (...) Aristotelian theories of virtue to ground the connection between law and virtue. While Aristotle believed that law and character were linked, it is ironic to note that he did not argue for the position evidenced in our vice laws that law was likely to succeed in instilling virtue. Indeed, Aristotle thought the project of using law to instill private virtue was nearly certain to fail. Aristotle’s deep concern was not for the way law protected private virtue within each person but the way law had to protect civic virtue between citizens. This article argues that even from its foundations, the project of vice crimes as moral instruction is misconceived. The use of law for overly instrumental or narrow reasons opens law and legal institutions to abuse and factionalism. Lawyers, judges and others specially connected to law must first and foremost aim at addressing “legal vices,” vices internal to the institutions of law. Particularly, increasing factionalism and instrumentalism which disconnects law from the pursuit of the common good threatens our civic bonds. Most importantly, where civic bonds are disrupted, citizens have no reason to remain law abiding. The striking lesson, captured both in ancient philosophy and modern history, is that when legal vices grow unchecked and factions use the law to pursue narrow interests, ultimately law abidingness is corrupted and interest groups harm themselves as much as others. (shrink)

A century after the publication of Evgeny Pashukanis's pivotal book General Theory of Law and Marxism, this collection presents a comprehensive account and analysis of his key concept of legal form. Evgeny Pashukanis's General Theory, born amidst the fervour of the first socialist revolution, remains still a crucial reference point in Marxist theories of the law and critical legal theory. Its theoretical depth paved the way for new understandings of the relationship between Marxism and the law. Its (...) crucial virtue continues to be, even after a century, the ability to articulate epochal concerns in the context of a socialist revolution that turned hitherto theoretical problems into dilemmas of practice. This book returns to Pashukanis's main concept: 'legal form'. Through this jurisprudential category Pashukanis aimed to grasp the dependence of the law on the economy, and at the same time, to enquire into the degree to which the law preserves its autonomy from economic relations. In other words, the legal form as a concept conveys both the law's dependence on the economic sphere of exchange and its greatest inherent specificity: the way it translates economic relations into its proper language and set of legal/ideological constructs. The contributions to this volume provide a range of perspectives on how the concept of legal form has been developed and reinterpreted. Including the first English translation of Pashukanis's essay, 'Hegel, State and Law', this collection will be of considerable interest to scholars and students of legal and political theory. (shrink)

Reedition of papers in English spanning from 1986 to 2009 /// Historical background -- An imposed legacy -- Twentieth century contemporaneity -- Appendix: The philosophy of teaching legal philosophy in Hungary /// HISTORICAL BACKGROUND -- PHILOSOPHY OF LAW IN CENTRAL & EASTERN EUROPE: A SKETCH OF HISTORY [1999] 11–21 // PHILOSOPHISING ON LAW IN THE TURMOIL OF COMMUNIST TAKEOVER IN HUNGARY (TWO PORTRAITS, INTERWAR AND POSTWAR: JULIUS MOÓR & ISTVÁN LOSONCZY) [2001–2002] 23–39: Julius Moór 23 / (...) István Losonczy 29 // ON THE SURVIVAL OF ILMAR TAMMELO’S LETTER AND MANUSCRIPT ADDRESSED TO PROFESSOR MOÓR [2009] 41–44 // PROFESSIONAL DISTRESS AND SCARCITY: ALEXANDER HORVÁTH AND THE LEGACY OF NATURAL LAW IN HUNGARY [2005] 45–50 // HUNGARIAN LEGAL PHILOSOPHY IN THE 20TH CENTURY [2011] 51–72: I. The Pre-war Period [1. Bódog (Felix) Somló (1871–1920) 52] / II. The Inter-war Period [2. Gyula (Julius) Moór (1888–1950) 54 / 3. Barna Horváth (1896–1973) 55 / 4. József Szabó (1909–1992) 57 / 5. István Bibó (1911–1979) 58 / 6. Tibor Vas (1911–1983) 59 / 7. István Losonczy (1918–1980) 60] III. The Post-war Period (Communism) 61 [8. Imre Szabó (1912–1991) 62 / 9. Vilmos Peschka (1929–2006) 63 / 10. Kálmán Kulcsár (1928–2010) 65] IV. Contemporary Trends and Perspectives 66 [11. Csaba Varga (b. 1941) 66 / 12. András Sajó (b. 1949) 69 / 13. Béla Pokol (b. 1950) 70] V. Our Understanding of the Law Today 71 --- AN IMPOSED LEGACY -- LOOKING BACK [1999] 75–94: 1. On Ideologies and Marxism in general 75 / 2. Life of an Intellectual in Communism 79 / 3. On Marxism and its Socialist Cultivation in Particular 82 / 4. Legal Philosophising [4.1. Approaches to Law 87 / 4.2. Arriving at a Legal Ontology 91] 5. Conclusion 94 // LEGAL PHILOSOPHY OF THE MARXISM OF SOCIALISM: HUNGARIAN OVERVIEW IN AN INTERNATIONAL PERSPECTIVE [2003] 95–151: I. Development and Balance of Marxist Philosophising on Law in Hungary [1. Preliminaries (until 1948) 96 / 2. Stalinism (from the Soviet Occupation on) {a) Liquidation of the »Residues« 98 / b) Soviet-type Uniformisation [Gleichschaltung] 99 / c) Denial of the Past, with a Dual Effect 99 / d) »Socialist Legality«, Drawn from the Progressive Past of Western Europe 103 / e) Search for the Germs of Scholarly Evolution 103} 3. Institutionalisation Accompanied by Relaxation (from the 1960s) [a) Epigonism Becoming the Scholarly Ideal 104 / b) Stalinism in a Critical Self-perspective 105 / c) Disciples Diversified Launching their own Trends 107 / d) Comparatism 110 / e) (Re)discovery of the Western Legal Philosophy as a Competitor 112 / f) A Leading Mediatory Role within the »Socialist World Order« 114} 4. Disintegration (in the 1980s) {a) Attempt at Laying New Foundations for Marxism with Epigonism Exhausted 115 / b) Competitive Trends Becoming Exclusive 115 / c) Western Legal Philosophy Acknowledged as a Fellow-traveller within the Socialist Orbit Proper 116 / d) Hungarian Legal Theory Transforming into a National Corpus 118 / e) The Practical Promotion of Some Balance 119} 5. End-game for a Substitute State Religion (in the 1990s) 120] II. Marxist Legal Philosophising in an International Perspective [Ad 1: To the Preliminaries 122 / Ad 2: To Stalinism 124 / Ad 3: To Institutionalisation Accompanied by Relaxation {a) Late Separation from Vishinskiy’s Theory 125 / b) From Ideological Self-closure to an Apparently Scholarly Openness 127 / c) From Political Ideology to Genuine Scholarship 130 / d) International Recognition of Socialist Jurisprudence as an Independent Trend 135 / e) Together with Western Trends 137} Ad 4: To Disintegration {a) Loss of Attraction as Mere Epigonism 139 / b) Exclusivity of Competing Trends 139 / c) Fellowship with »Bourgeois« Trends 140 / d) An own Trend, Internationally Recognised 141 / e) A yet Progressive Role 142} Ad 5: To the Present state 143] III. A Temporary Balance 145 // AUTONOMY AND INSTRUMENTALITY OF LAW IN A SUPERSTRUCTURAL PERSPECTIVE [1986] 151–175: 1. The Strange Fate of Concepts 151 / I. A Relational Category 2. Basis and Superstructure: The Genuine Meaning 154 / 3. Exerting Social Influence as a Conceptual Minimum 156 / 4. Relationships within the Prevailing Totality 158 / 5. Attempts at Interpretation in Hungary 159 / 6. The Lukácsian Stand 162 / 7. Lukács’s Recognitions 168 / 8. Some Criticism 169 / II. The Law’s Understanding 171 / 9. Law Interpreted as Superstructure 171 / 10. Conclusions Drawn for the Law’s Understanding 173 // LEGAL THEORY IN TRANSITION (A PREFACE FROM HUNGARY) [2000] 177–186 // DEVELOPMENT OF THEORETICAL LEGAL THOUGHT IN HUNGARY AT THE TURN OF THE MILLENNIUM [2006] 187–215: 1. International Environment 188 / 2. The Situation in Hungary 190 / 3. Outlook I: The Historical-comparative Study of Legal Cultures and of the Lawyerly Way of Thinking 203 / 4. Outlook II: The Paradigmatic Enigma of the Transition to Rule of Law 207 / 5. Incongruity in Practice 213 / 6. Perspectives 214 --- TWENTIETH CENTURY CONTEMPORANEITY -- CHANGE OF PARADIGMS IN LEGAL RECONSTRUCTION: CARL SCHMITT AND THE TEMPTATION TO FINALLY REACH A SYNTHESIS [2002] 219–234: 1. Dangers of Intellectualism 219 / 2. Schmitt in Facts 221 / 3. Schmitt and Kelsen 222 / 4. On Bordering Conditions 226 / 5. With Kelsen in Transubstantiation 230 / 6. Polarisation as the Path of Theoretical Development 232 // KELSENIAN DOCUMENTS IN HUNGARY: CHAPTERS ON CONTACTS, INCLUDING THE GENESIS OF AUTOBIOGRAPHY [2006] 235–243: 1. Preludes 235 / 2. The Search for Moór’s Bequeath 235 / 3. Moór’s Collegiality 238 / 4. Bibó as a Disciple Translating 241 // THE »HART-PHENOMENON« [2002] 245–267: I. The Hart-miracle 246 [1. The Scene of Britain at the Time 247 / 2. The Personal Career 250 / 3. The Opus’ Career 252 / 4. Verbal Sociologism 255 / 5. Growing into the British Pattern 259] II. The Hart-phenomenon 260 [6. Origination of a Strange Orthodoxy 261 / 7. Mastering Periods of the 20th Century 263 / 8. Raising the Issue of Reception in Hungary 365] // LITERATURE? A SUBSTITUTE FOR LEGAL PHILOSOPHY? [2007] 269–287: 1. The Enigma of Law and its Study 269 / 2. “Law and Literature” 271 / 3. Varieties of “Law and Literature” 274 / 4. The German Study of Artistic Representations 280 / 5. Some Literary Reconsiderations 285 / 6. Conclusion 287 --- APPENDIX -- THE PHILOSOPHY OF TEACHING LEGAL PHILOSOPHY IN HUNGARY [2007] 291–320: I. Why and How to Philosophise in Law? 291 / II. The State of Teaching Legal Philosophy 294 / III. The Philosophy of Teaching Legal Philosophy 296 / IV. Programme at the Catholic University of Hungary 300 [1. Graduate Studies 300 {a) Basic Subjects 301 / b) Facultative Seminars 305 / c) Closing Subjects 309 / d) Written Memoranda and the Thesis 312} 2. Postgraduate Studies 313 / 3. Conclusion 317] V. Perspectives 318 /// Index of Subjects 321 / Index of Normative Materials 328 / Index of Names 329 . (shrink)

Disagreement on law’s relationship to morality has long been driven by disagreement about our ordinary concept. Until recently, however, there had been no systematic investigation of lay intuitions. In this paper, we advance this nascent effort. Across two studies (N = 697), our findings reveal that most people consider law to be more than a matter of political circumstance alone. Contrary to the expectations of most contemporary philosophers, morality (both substantive and procedural) emerges as a key influence on judgments of (...) legal validity: many people say that conduct prohibited by immoral statutes is not truly illegal, and that immoral conduct which was never explicitly prohibited is truly illegal. This suggests that people often treat law as a dual character concept that, like the concepts of scientist or of artist, features autonomous concrete and abstract dimensions. (shrink)

Legal education in continental Europe -- The law of nature in European courts -- Legal education in England -- The law or nature in English courts -- Legal education in the United States -- The law of nature in American courts.

X-Phi and Theory Acceptance in Political Philosophy -/- What is the relevance of experimental philosophy (X-Phi) to theory acceptance in political philosophy? To answer this question, the paper distinguishes between four views, to wit: (i) X-Phi as a systematic method to avoid or reduce biases in our moral intuitions—The De-Biasing View; (ii) X-Phi as a tool for assessing the fruitfulness or consequences of various concepts—The Fruitfulness View; (iii) X-Phi as the best way to unearth the kind of (...) moral principles we are interested in as political philosophers—The Unearthing Principles View; and (iv) X-Phi as a way of testing the coherence of principles with folk intuitions—The Defeasible Reason (or Squatters’ Rights) View. The paper argues that the first two views and the last—subject to some clarifications—describe important X-Phi contributions to theory acceptance as this is traditionally understood within contemporary political philosophy. In contrast, the third view goes too far in suggesting that X-Phi can supplant more traditional, in part non-empirical, methods. -/- Keywords: Experimental philosophy (X-Phi); Theory acceptance in political philosophy; The De-Biasing View; The Fruitfulness View; The Unearthing Principles View; The Defeasible Reason (or Squatters’ Rights) View. (shrink)

Political philosophers have recently debated what role social practices should play in normative theorising. Should our theories be practice-independent or practice-dependent? That is, can we formulate normative institutional principles independently of real-world practices or are such principles only ever relative to the practices they are meant to govern? Any first-order theory in political philosophy must contend with the methodological challenges coming out of this debate. In this article, I argue that consequentialism has a plausible account of how social (...) practices should factor in normative political philosophy. I outline a version of consequentialism, Practice Consequentialism, that provides a plausible blueprint for integrating social practices in normative theorising. Second, I argue that Practice Consequentialism accounts well for the central arguments on both sides of the practice-dependence debate. Capturing arguments for practice-dependence, consequentialism brings out why real-world practices are central in formulating institutional principles. Conversely, capturing arguments for practice-independence, consequentialism offers a clear external normative perspective from which to evaluate practices. (shrink)

The Communicational Theory of Law (CTL) usually differentiates between Legal Sociology and Legal Theory, in the sense that Legal Sociology is concerned with the social validity of the rules and Legal Theory with the formal or legal validity of the rules. It can be argued that both disciplines are two different perspectives of the same empirical reality (legal rules). Also, legal System and social milieu are two closely linked realities; they cannot be separated (...) because they need each other. The Law is the form or order that the social milieu takes, and, at the same time, the social environment provides the ideas, collective representations and other matters that need a legal regulation. For this reason, the epistemological separation between Sociology and Legal Theory must be overcome when the theoretical perspective comes to legal decisions. Thus, the decisional moment becomes the meeting point between the legal System and the social milieu. This is where the concept of the legal System fulfils its main function, as it allows for the dynamism and adaptability of the legal order. The hermeneutic re-elaboration of the normative texts will be the channel through which the social facts and other material elements can inform the meaning or possible interpretations of the rules and institutions of the legal order. This happens primarily by influencing theoretical and doctrinal works of an expository and didactic nature; and secondarily by influencing the decisions of legal operators and courts. This study seeks to explain how the social context influences legal decisions and the formation of the legal System, from a communicational perspective of Law. In order to do so, it will be necessary to set out two epistemological premises of CTL: the semiotic tripartition of the Theory of Law and the legal Order-legal System distinction. (shrink)