The author explains that there is scope for a general theory about the nature and place of form in the fundamentals of law. Form organizes the institutions, rules and other varieties of law, and the system as a whole. All such constructs have non‐formal elements, too, but form unifies each construct and provides its criteria of identity. Appropriate form makes a system of law possible. It also tends to beget good content in the law. It is indispensable to the (...) basic needs of a legal system, and when such an end is organizational, as with democracy, liberty, and the rule of law, form is end as well as means. (shrink)

Written by a noted expert in criminal law, this book explores the philosophical underpinnings of the law's major doctrines concerning actus reus, mens rea, and defences, showing that they are not always driven by culpability. They are grounded also in principles of moral responsibility, ascriptive responsibility, and wrongdoing. As such, they engage wider debates about wrongdoing, and about the boundaries between liability and freedom. This multi-textured analysis allows this book to take more nuanced positions about many important controversies in criminal (...) law. It argues, for example, that liability for omissions and for negligence-and even some strict liability elements-can sometimes be legitimate yet, at the same time, should be relatively rare. It also explains why principles of causation can differ in the criminal law from other contexts; what is wrong with the 'voluntary act' requirement; and why luck can affect the wrongs we commit without changing our degree of blameworthiness for committing them. The book concludes with an account of the major types of defences, and of how they interact with an agent's wrong and her underlying motivations.This volume presents a coherent and rich vision of the criminal law that, by its sheer breadth, makes a distinctive contribution to the literature, of interest to lawyers and philosophers alike. (shrink)

Vol. 1. Mishne Torah: the book of knowledge, the book of women and the book of sanctity, the book of service -- Vol. 2. Mishne Torah: the book of sacrifices, the book of utterances, the book of agriculture, the book of purity, the book of damages, the book of acquisition, the book of judgements, the book of judges; Introduction to the Mishnah; Eight chapters on ethics; Discourse on the world to come; Letter to Yemen; Discourse on martyrdom.

During the current financial crisis, the need for an alternative to a laissez-faire ethics of capitalism (the Milton Friedman view) becomes clear. I argue that we need an order ethics which employs economics as a key theoretical resource and which focuses on institutions for implementing moral norms. -/- I will point to some aspects of order ethics which highlight the importance of rules, e.g. global rules for the financial markets. In this regard, order ethics (“Ordnungsethik”) is the complement of the (...) German conception of “Ordnungspolitik” which also stresses the importance of a regulatory framework. This framework is needed not to tame the market, but to make it more profitable in the long run. -/- The conception of order ethics relies heavily on contractarianism, especially on James Buchanan’s work. Unlike many other conceptions of ethics, it does not start with an aim to achieve, but rather with an account of what the social world – in which ethical norms have to be implemented – is like. Our social world is different from the pre-modern one. Pre-modern societies played zero-sum games in which people could only gain significantly at the expense of others. And the types of ethics that we are still used to today have been developed within these pre-modern societies. -/- Modern societies, by contrast, can be characterised – by economists and other social theorists alike – as societies with continuous growth. This growth has only been made possible by the modern competitive market economy which enables everyone to pursue his own interests within a carefully devised institutional system. In this system, positive sum games are played, which makes it in principle possible to improve the position of every individual at the same time. Most kinds of ethics, however, resulting from the conditions of pre-modern societies, ignore the possibility of win-win-situations and instead require us to be moderate, to share, to sacrifice, as this would have been functional in zero-sum games. These conceptions distinguish – in more or less strict ways – between self-interest and altruistic motivation. Self-interest, more often than not, is ultimately seen as something evil. -/- Such an ethics cannot be functional in modern societies. Ethical concepts lag behind. Within zero-sum games, it was necessary to call for temperance, for moderate profits, or for a condemnation of lending money at interest. Within positive-sum games, however, the morally desired result of a social process cannot be brought about by changes in motivation, by switching from ‘egoistic’ to ‘altruistic’ motivation. The second theoretical element introduced by order ethics is the distinction between actions and rules, which was already mentioned. Traditional ethics concerns actions: It calls directly for changes in behaviour. This is a consequence of pre-modern conditions as reconstructed before: People in the pre-modern world were only able to control their actions, not so much however the conditions of their actions. In particular, rules like laws, constitutions, social structures, the market order, and also ethical norms have remained stable for centuries. In modern societies, this situation has changed entirely. The rules governing our actions have increasingly come under our control. -/- In this situation, ethics has to focus on rules. Morality must be incorporated in incentive-compatible rules. Direct calls for changes in behaviour without changes in the rules lead only to an erosion of compliance with moral norms. Individuals that continue to behave ‘morally’ will be singled out, because the incentives have not been changed. Moral norms which are to be justified cannot require people to abstain from pursuing their own advantage. People abstain from taking ‘immoral’ advantages only if adherence to ethical norms yields greater benefits over the planned sequence of actions than defection in the single case. Thus ‘abstaining’ is not abstaining in the long run, it is rather an investment in expectations of long-term benefits. By adhering to ethical norms, I become a reliable partner for interactions. The norms do indeed constrain my actions, but they simultaneously expand my options in interactions. And people consent to rules only if these rules hold greater advantages for them, at least in the long run. -/- In general, ethics cannot require people to abandon their individual calculation of advantages. However, it may suggest improving one’s calculation, by calculating in the long run rather than in the short run, and by taking into account the interests of our fellows, as we depend on their acceptance for reaching an optimal level of well-being, especially in a globalized world full of interdependence. -/- The problem of implementation can now be placed at the beginning of a conception of order ethics, justified with reference to the conditions of modern societies I have sketched. Under the conditions of pre-modern societies, an ethics of temperance had evolved that posed simultaneously the problems of implementation and justification. The implementation of well-justified norms or standards could then be regarded as unproblematic, because the social structures allowed for a direct face-to-face enforcement of norms. Pre-modern societies not only favored an ethics of temperance, they also had the instrument of face-to-face-sanctions within their smaller and non-anonymous communities. This instrument is no longer functional in modern anonymous societies, and so we have to face up to the problem of implementation right at the start of our ethical conception. Simultaneously, an order ethics relies on the implementation of sanctions for enforcing incentive-compatible rules. In modern societies, rules and institutions, to a large extent, must fulfil the tasks that were, in pre-modern times, fulfilled by moral norms, which in turn were sanctioned by face-to-face sanctions. Norm implementation in modern societies thus works by setting adequate incentives in order to prevent the erosion of moral norms, which would happen if ‘moral’ actors were systematically threatened with exploitation by other, less ‘moral’ actors. -/- This conception of order ethics is then elaborated further in the area of business ethics. -/- . (shrink)

_The Philosophy of Law_ is a broad-reaching text that guides readers through the basic analytical and normative issues in the field, highlighting key historical and contemporary thinkers and offering a unified treatment of the various issues in the philosophy of law. Enlivened with numerous, everyday examples to illustrate various concepts of law. Employs the idea of three central commonplaces about law - that law is a social matter, that law is authoritative, and that law is for the common good - (...) to organize seemingly disparate topics and to bring rival views into contention with each other. The first volume in the _Fundamentals of Philosophy _series, in which leading philosophers explore the fundamental issues and core problems in the major sub-disciplines of philosophy. (shrink)

The question of whether there are laws in ecology is important for a number of reasons. If, as some have suggested, there are no ecological laws, this would seem to distinguish ecology from other branches of science, such as physics. It could also make a difference to the methodology of ecology. If there are no laws to be discovered, ecologists would seem to be in the business of merely supplying a suite of useful models. These models would need to be (...) assessed for their empirical adequacy but not for their ability to capture fundamental truths, or the like. If, on the other hand, ecology does have laws, this prompts further questions about what these laws are and why even the best candidates for ecological laws fall short of what might be expected of laws. (shrink)

This edition also reprints Kant's later Supplementary Explanations (1797), which was added to the second edition (1798).

Philosophy of law is philosophy about law. common critical ontology examines the structure of the world which is hierarchical and is composed of four fundamental levels; the anorganic being, the organic being, the psychical being and the spiritual being, where we meet the personal, objective and the objectified spirit. the new critical ontology is science in the strictest sense of the word and consequently goes out from the total experience. critical legal ontology examines the essence of law and states where (...) the law belongs; in the ideal world or the real world, and states its place in these worlds. it appears that the so far unsolvable fundamental question, i.e., the problems of law and power, and law and revolution are easily and "cum ratione" sufficient to be solved on the basis of this new science. (edited). (shrink)

ABSTRACT Most theorists agree that our social order includes a distinctive legal dimension. A fundamental question is that of whether reference to specific legal phenomena always involves a commitment to a particular moral view. Whereas many philosophers advance the ‘positivist’ claim that any correspondence between morality and the law is just a function of political circumstance, natural law theorists insist that law is intrinsically moral. Each school claims the crucial advantage of consistency with our folk concept. Drawing on the notion (...) of dual character concepts, we develop a set of hypotheses about the intuitive relation between a rule’s moral and legal aspects. We then report a set of studies that conflict unexpectedly with the predictions by legal positivists. Intuitively, an evil rule is not a fully-fledged instance of law. (shrink)

The rule of law is a moral ideal that protects distinctive legal values such as generality, equality before the law, the independence of courts, and due process rights. I argue that one of the main goals of an international rule of the law is the protection of individual and state autonomy from the arbitrary interference of international institutions, and that the best way to codify this protection is through constitutional rules restraining the reach of international law into the internal affairs (...) of a state. State autonomy does not have any intrinsic value or moral status of its own. Its value is derivative, resulting from the role it plays as the most efficient means of protecting autonomy for individuals and groups. Therefore, the goal of protecting state autonomy form the encroachment of international law will have to be constrained by, and balanced against the more fundamental goal of an international rule of law, the protection of the autonomy of individual persons, best realized through the entrenchment of basic human rights. (shrink)

The law of the future faces fundamental challenges that it cannot overcome by means of ‘tried and trusted’ dogmatics alone. Nor can it, from a methodological standpoint, take refuge in a purportedly apolitical hermeneutics or a one-sided application of empirical methods. Its responsibilities are not exhausted in mere steering, innovation or stimulating operations, but also encompass critical-emancipatory functions. Methodological reflection and legal critique - understood as social theory in the ‘interior’ of law - enable legal doctrine to meet the particular (...) demands that arise from the simultaneous affiliation of jurisprudence to the systems of law and science. The future development of legal studies thus requires a foundational research approach that preserves the interdisciplinary connection to neighbouring disciplines in the humanities and social sciences, and provides impetus for enlightened self-critique and self-reflection. Only in this way - through the emergence of jurisprudence from its self-incurred ignorance regarding its social function - might legal practice assert itself in everyday legal life and confront the injustices of the legal world with its own thinking. Such critical legal thinking demands more than just the perpetuation of traditions based on the history of ideas. Nor can it be satisfied through the mere cultivation of empirical approaches to reality. It must aim to develop and unfold a normative concept of law, and write this forward into the future. It derives its essential reflective potential from social-theoretical modelling and methodological development. In the process, the reciprocal confrontation and translation of rival theoretical models opens new learning possibilities not to solve legal conflicts, but to treat them more judiciously. Here, it is above all the foundational legal subjects that, through their discrete approaches and perspectives, open diverse and flexible entryways to the potentialities and actualities of law and, particularly in light of new cases, ensure the necessary variance of options for perception and action. The future of law resides in experimental testing and innovative discovery, in the creative quest for alternative possibilities and possible realities, in the critical and constructive struggle for the law of the future - as the ecological law of future life in the next bio-digital society. (shrink)

There are multiple and diverse voices of jurists who have expressed their fear of the unrestricted power of law enforcement and have announced the crisis of the formalist sense of Law. The widespread reaction against the abstract and formalist character of the positivist theory of law manifested itself as the Krausist philosophy of law and was backed by the philosophy of Krause, Schelling, Hegel and the most recent Natural Law theories that seek to establish substantial criteria for moral action. This (...) distrust was caused by the heteronomy of modest and obedient civil servants of the judicial order that rely on political balance of power in which nothing depends on the human bottom of institutions. Let us consider briefly the impressive analyses performed by different thinkers on this issue, which they considered characteristic of their era, but that continues to constitute a difficulty that challenges contemporary society. (shrink)

On normative order -- On institutional order-- Law and the constitutional state -- A problem : rules or habits? -- On persons -- Wrongs and duties -- Legal positions and relations : rights and obligations -- Legal relations and things : property -- Legal powers and validity -- Powers and public law : law and politics -- Constraints on power : fundamental rights -- Criminal law and civil society : law and morality -- Private law and civil society : law (...) and economy -- Positive law and moral autonomy -- On law and justice -- Law and values : reflections on method. (shrink)

The need for the axiological determinants of cognition of law to be theoretically justified as a constituent of legal progress that includes the humanization of law makes the problem under the study relevant. The purpose of this article is to distinguish the value determinants of cognition of law. The main methodological approaches used in the study are axiological and anthropological approaches, which allow us to consider law as a valuable constituent of human life, inextricably linked with the human personality. The (...) article reveals that the modern understanding of the term “law” is characterized by axiological and anthropological approaches to its cognition; founds out that the human legal value has an integral-synthesizing character to all other values and, as a result, is embodied in the absolute legal value and inherent worth; establishes that the human dimension of law has become the result and, at the same time, the source of value-legal human understanding, which indicates the value of law and its axiological characteristics. (shrink)

Substance and the Fundamentality of the Familiar explicates and defends a novel neo-Aristotelian account of the structure of material objects. While there have been numerous treatments of properties, laws, causation, and modality in the neo-Aristotelian metaphysics literature, this book is one of the first full-length treatments of wholes and their parts. Another aim of the book is to further develop the newly revived area concerning the question of fundamental mereology, the question of whether wholes are metaphysically prior to their parts (...) or vice versa. Inman develops a fundamental mereology with a grounding-based conception of the structure and unity of substances at its core, what he calls substantial priority, one that distinctively allows for the fundamentality of ordinary, medium-sized composite objects. He offers both empirical and philosophical considerations against the view that the parts of every composite object are metaphysically prior, in particular the view that ascribes ontological pride of place to the smallest microphysical parts of composite objects, which currently dominates debates in metaphysics, philosophy of science, and philosophy of mind. Ultimately, he demonstrates that substantial priority is well-motivated in virtue of its offering a unified solution to a host of metaphysical problems involving material objects. (shrink)

My discussion will focus on Simester’s overall analysis of the “general part” of criminal law theory, setting aside the book’s rich and careful analyses of many specific topics. Quite rightly, in my view, Simester wishes to emphasize criminal law’s prohibitions, and their moral as well as legal importance. My criticism is that Simester runs together moral and legal categories in a way that distorts both. Simester grounds lawful punishment in a specific notion of moral culpability. In my view, this moralized (...) interpretation of the general part places the wrong sort of focus on defendants and edges victims from view. We make better sense of criminal responsibility if we focus on the state’s duty to uphold rights and to insist that no one get their way by force or fraud. This implies a more indirect concern with the moral failings that lead people to violate others’ rights. It also reminds us of an inherent danger of criminal law, one that has unfortunate echoes in the theoretical framing of the “general part”: how often it fails to do justice to victims. (shrink)

The argument of this article is that the dual-nature thesis is not only capable of solving the problem of legal positivism, but also addresses all fundamental questions of law. Examples are the relation between deliberative democracy and democracy qua decision-making procedure along the lines of the majority principle, the connection between human rights as moral rights and constitutional rights as positive rights, the relation between constitutional review qua ideal representation of the people and parliamentary legislation, the commitment of legal argumentation (...) to both authoritative and non-authoritative reasons, and the distinction between rules as expressing a real “ought” and principles as expressing its ideal counterpart. All of this underscores the point that the dual nature of law is the single most essential feature of law. (shrink)

This book examines the success of Frederick Schauer’s efforts to reclaim force as a core element of a general concept of law by approaching the issue from different legal traditions and distinct perspectives. In discussing Schauer’s main arguments, it contributes to answering the question whether force, sanctions and coercion should be regarded as necessary elements of the concept of law, and whether legal philosophy should be concerned at all with necessary or essential properties. While it was long assumed that legal (...) norms are essentially defined by their force, it was H.L.A. Hart who raised doubts about whether law and coercion are necessarily connected, referring to the empowering, or more generally enabling, character exhibited by some legal norms. Prominent scholars following and refining Hart’s argument built an influential case for excluding force as a necessary element of the concept of law. Most recently, however, Frederick Schauer has made a strong case to reaffirm the force of law, shedding new light on this essential question. This book collects important commentaries, never before published, by prominent legal philosophers evaluating Schauer’s substantive arguments and his claims about jurisprudential methodology. (shrink)

The equation for the fundamental field quantity ϱ is obtained. It is Div $\rho ^\mu (\Omega _1 ) = \operatorname{h} \int {[\rho _\mu (\Omega _1 ),\rho ^\mu (\Omega _2 )]_ - \operatorname{d} \Omega _2 } $ ,where h is an arbitrary function oft andr, and [,]− is the commutator. The derivation requires the following hypotheses:(1) All of physical reality is completely described by the field ϱ.(2) Relativistic covariance of the equations governing ϱ.(3) Principle of continguous action.(4) Conservation of total amount (...) of ϱ. The equation appears to be unique. It is suggested that the physical world corresponds to ϱ being a2×2 matrix. A close correspondence between the basic equation and Maxwell's equation is displayed. The electromagnetic vector potential Aμ is identified with ε ρμ dΩ. Conservation laws on various measures of ϱ are obtained. The symmetry groups of the basic equation are derived. A preliminary attempt to connect the field ϱ to the metric is made via Einstein's gravitational equation Gμυ =KTμυ. (shrink)

The Philosophy of Law is a broad-reaching text that guides readers through the basic analytical and normative issues in the field, highlighting key historical and contemporary thinkers and offering a unified treatment of the various issues in the philosophy of law. Enlivened with numerous, everyday examples to illustrate various concepts of law. Employs the idea of three central commonplaces about law - that law is a social matter, that law is authoritative, and that law is for the common good - (...) to organize seemingly disparate topics and to bring rival views into contention with each other. The first volume in the Fundamentals of Philosophy series, in which leading philosophers explore the fundamental issues and core problems in the major sub-disciplines of philosophy. (shrink)

Lively, comprehensive, and contemporary, The Voice of Reason: Fundamentals of Critical Thinking covers three principal areas: thought and language, systematic reasoning, and modes of proof. It employs highly accessible explanations and a multitude of examples drawn from social issues and various academic fields, showing students and other readers how to construct and criticize arguments using the techniques of sound reasoning. The Voice of Reason examines the traditional elements of the field and also explores new ground. The first section of (...) the book elucidates the relationship between thought and language, explaining how words function. It discusses meaning, connotation, vagueness, ambiguity, and definition, identifying the linguistic elements that can produce mistakes in thinking. The next section describes the rules of systematic reasoning, examining such topics as truth, relevance, and adequacy; deductive logic (categorical, hypothetical, and disjunctive); and induction (cause and effect, analogy, generalization, and hypothesis). Sixteen fallacies in thinking are also described through extensive illustrations and applications. The final section of the book offers a unique study of what constitutes proof in several different areas--including politics, advertising, law, and social issues--as well as in the academic disciplines of literature, science, history, and ethics. The author describes the various rules of evidence, using essays by major figures in each field as examples. An ideal text for courses in critical thinking, informal logic, and reasoning and writing, The Voice of Reason offers numerous pedagogical features including a host of examples; assignments, exercises, and puzzles at both the halfway point and at the end of each chapter; cartoons and quotations throughout; and practical applications of theoretical concepts. An extensive Instructor's Manual contains answers to the exercises that appear throughout the text. (shrink)

This article is aimed at representing the approaches of legal theory to the interaction between law and politics and to depict the main national features of the relationship between law and politics. The analysis is based on the adoption of methodology of fundamental work of Mauro Zamboni “Law and Politics”. The adoption of methodology was used only partially, while seeking to identify and clarify the features of static, dynamic and epistemological aspects of the relationship of law and politics in Lithuania. (...) Researchers have faced the problem of a diverse approach to the definitions of law and politics, and it has been resolved by focusing only to the researches representing the standpoint of legal theories. The analysis has led to the findings that there are reasonable grounds to assume that legal content (referring to the “static” aspect of law and politics) in Lithuania is flexible to outgoing politics. This implication is based on 1) the noticeable disproportion of legal regulation in different areas of social life, 2) law-making priority areas determined mostly by the choice of political actors will and 3) through changed execution of legal norms, prefering the forms which could be more cost effective (alternative dispute resolutions) and more suitable for changing social environment. What concerns the “dynamic” aspect of the relation between law and politics, it is implicated that there are backings for both open and closed law making, but at the same time more open legislative features are observed than the closed ones. This tendency is identified in the legislative process, where the help out of non-legal world is applied (using sociology) and the persistence of politicians to access and use the institutes of citizens’ legislative initiative (iniciatives for referendums or other legislative initiatives, the right to petition, etc.) is obvious. The reflection of „epistemological“ aspect of the relationship between law and politics in Lithuanian legal discipline reflects the general trend of international scientific community of law. It is considered to step back from the autonomous legal discipline concepts and in this way the appropriate conditions for incorporation of different categories from other scientific fields are created. On the other hand, a reserved cautious attitude of both researchers and research institutions on the conjunction of law and political science is observed. The interaction between law and economics and business or public relations is still prioritized. (shrink)

Over the past 50 years, there has been a great deal of philosophical interest in laws of nature, perhaps because of the essential role that laws play in the formulation of, and proposed solutions to, a number of perennial philosophical problems. For example, many have thought that a satisfactory account of laws could be used to resolve thorny issues concerning explanation, causation, free-will, probability, and counterfactual truth. Moreover, interest in laws of nature is not constrained to metaphysics or philosophy of (...) science; claims about laws play essential roles in areas as diverse as the philosophy of religion (e.g., in the argument from design) and the philosophy of mind (e.g., in the formulation of Davidson’s anomalous monism). In my dissertation, I consider and reject the widely-held thesis that the facts concerning laws can be reduced to the facts concerning the particular entities that the laws “govern,” and that the laws thus have no independent existence. I instead defend a version of nomic primitivism, according to which the facts about laws cannot be reduced to facts that are themselves non-nomic – i.e., to facts that do not fundamentally involve laws, counterfactuals, causes, etc. Insofar as the truth or falsity of reductionism about laws has implications for many of the problems mentioned above, I think that this result should be of interest even to those who who do not work in metaphysics or the philosophy of science. My methodology, which I lay out and defend in Chapter One, is a version of Carnapian explication. This method emphasizes the importance of articulating and maintaining clear distinctions between (1) the vague concept (or concepts) law of nature inherent in ordinary language and scientific practice and (2) the precise analyses of “law of nature” that philosophers have proposed as potential replacements for this concept. I argue that metaphysics-as-explication has clear advantages over rival conceptions of metaphysical methodology; in particular, it allows us to formulate evaluative criteria for metaphysical claims. In Chapter Two, I offer an example of how careful attention to concepts already in use can help resolve philosophical debate. Specifically, I argue that much recent literature has mistakenly assumed that there is only one concept of “law of nature” in use, while there are in fact at least two. Strong laws are the principles pursued by fundamental physics: they are true, objective, and bear distinctive relationships to counterfactuals and explanation. Weak laws, by contrast, lack at least one of these distinctive characteristics but play central roles in both the “special sciences” and in everyday life. In Chapters Three and Four, I offer extended arguments against the two most prominent versions of reductionism about laws – Humeanism and law necessitarianism. According to philosophical Humeans, the laws of nature supervene upon the non-modal, non-nomic facts concerning the behavior of particular things at particular times and places. Law necessitarians, by contrast, argue that the laws are in fact metaphysically necessary, and that which laws there are is determined by a class of primitive, modally loaded facts concerning the essences, natures, or dispositions. I argue that both of these views are mistaken insofar as they disagree with well-entrenched scientific practices and those in favor of reductionism have failed to provided sufficient reason for thinking that these practices should be revised. Much of my argument is focused on the role played by a number of supposed methodological principles, including appeals to intuition, parsimony, and methodological naturalism. While the conclusions of this dissertation are explicitly constrained to laws, many of the arguments should be of interest to those who are concerned about philosophical methodology (especially in the role of intuition in philosophical argument) or the appropriate relation between metaphysics, science, and the philosophy of science. (shrink)

In Philosophy of Law, Andrei Marmor provides a comprehensive analysis of contemporary debates about the fundamental nature of law—an issue that has been at the heart of legal philosophy for centuries. What the law is seems to be a matter of fact, but this fact has normative significance: it tells people what they ought to do. Marmor argues that the myriad questions raised by the factual and normative features of law actually depend on the possibility of reduction—whether the legal domain (...) can be explained in terms of something else, more foundational in nature. In addition to exploring the major issues in contemporary legal thought, Philosophy of Law provides a critical analysis of the people and ideas that have dominated the field in past centuries. It will be essential reading for anyone curious about the nature of law. (shrink)

This is a first attempt at the philosophical articulation and projection of the Igbo concept of law and the role of law in the traditional environment. In the Igbo traditional setting, the rules of law are uncodified. The author, who teaches philosophy of law and logic at the University of Nigeria, defines the law of a given community as the body of rules recognised as binding by its members. On this concept of law, he has based his attempt to elucidate (...) the philosophical underpinning of those rules recognised in Igbo traditional legal system as law. Unless the philosphical foundation is understood, the traditional law, machinery for enforcement, and legislative and judicial processes may appear incomprehensible. The first part gives a descriptive insight into the moral, religious, socio-political and legal background of the Igbo. The second part is devoted to the fundamental questions concerning the concept of law, the various types of laws, the reciprocal influence between law and Igbo religion and the end of laws. Finally, the author examines the nature of right in Igbo traditional thought and locates the philosophical background. (shrink)

This paper claims that a particular interpretation of Kant`s legal-political philosophy, as it is presented in his Doctrine of Right, provides us with the much needed resolution to the question of the normativity of law, precisely because it brings in a perspective that avoids both positivism and ethicism. This particular interpretation follows a strategy of argumentation that I call the “argument for the intrinsic normativity of law”, i.e., the argument that law is defined and justified on its own grounds, without (...) any need to refer to ethics, or rational/enlightened self-interest. This argument highlights the concept of legal person with the innate right to freedom as the necessary presupposition of legal practices, and sets forth a fundamental sense of justice inherent to the concept of law that consists in the reciprocal recognition of legal personality. In the end, I come up with a distinctive conception of law that I formulate as a last resort of normativity in the face of a conflict wherein an ethical solution does not appeal to all parties. (shrink)

In assessing compliance with the Rule of Law, the contested nature of the concept renders the use of a single theorist’s conception or, alternatively, the adoption of a hybrid conception open to criticism. There is no settled and practical way to determine Rule of Law non-compliance. It is argued that by looking behind the concept’s contestedness, Rule of Law non-compliance can be identified. The fundamental needs undergirding canonical conceptions are used to identify common elements of the Rule of Law. By (...) taking this approach, two necessary Rule of Law elements are distilled: Comprehension; and, Procedural Pellucidity. As a result of their elemental nature, an inability to comply with the elements reflects a total inability to satisfy the Rule of Law regardless of the canonical conception preferred. The methodology suggested provides a practical – theory agnostic – way to identify Rule of Law non-compliance beyond the concept’s inherent contestedness. (shrink)

Peter Morton provides in these pages a fundamental critique of the assumptions of positivist jurisprudence and also puts forth an attack on the foundationalism of contemporary legal philosophy. His prime concern is to distinguish between the different fields of law--penal, civil, and public--taking as his starting point a careful analysis of those institutions in a democracy wherein legal language and norms are in fact generated. Offering an original, coherent, and systematic exposition of law in today's society, Morton sheds new light (...) on legal practices and relations by way of a comparison with an ideal type of legal system. (shrink)

PREFACE. THE Author of this very practical treatise on Scotch Loch - Fishing desires clearly that it may be of use to all who had it. He does not pretend to have written anything new, but to have attempted to put what he has to say in as readable a form as possible. Everything in the way of the history and habits of fish has been studiously avoided, and technicalities have been used as sparingly as possible. The writing of this (...) book has afforded him pleasure in his leisure moments, and that pleasure would be much increased if he knew that the perusal of it would create any bond of sympathy between himself and the angling community in general. This section is interleaved with blank shects for the readers notes. The Author need hardly say that any suggestions addressed to the case of the publishers, will meet with consideration in a future edition. We do not pretend to write or enlarge upon a new subject. Much has been said and written-and well said and written too on the art of fishing but loch-fishing has been rather looked upon as a second-rate performance, and to dispel this idea is one of the objects for which this present treatise has been written. Far be it from us to say anything against fishing, lawfully practised in any form but many pent up in our large towns will bear us out when me say that, on the whole, a days loch-fishing is the most convenient. One great matter is, that the loch-fisher is depend- ent on nothing but enough wind to curl the water, -and on a large loch it is very seldom that a dead calm prevails all day, -and can make his arrangements for a day, weeks beforehand whereas the stream- fisher is dependent for a good take on the state of the water and however pleasant and easy it may be for one living near the banks of a good trout stream or river, it is quite another matter to arrange for a days river-fishing, if one is looking forward to a holiday at a date some weeks ahead. Providence may favour the expectant angler with a good day, and the water in order but experience has taught most of us that the good days are in the minority, and that, as is the case with our rapid running streams, -such as many of our northern streams are, -the water is either too large or too small, unless, as previously remarked, you live near at hand, and can catch it at its best. A common belief in regard to loch-fishing is, that the tyro and the experienced angler have nearly the same chance in fishing, -the one from the stern and the other from the bow of the same boat. Of all the absurd beliefs as to loch-fishing, this is one of the most absurd. Try it. Give the tyro either end of the boat he likes give him a cast of ally flies he may fancy, or even a cast similar to those which a crack may be using and if he catches one for every three the other has, he may consider himself very lucky. Of course there are lochs where the fish are not abundant, and a beginner may come across as many as an older fisher but we speak of lochs where there are fish to be caught, and where each has a fair chance. Again, it is said that the boatman has as much to do with catching trout in a loch as the angler. Well, we dont deny that. In an untried loch it is necessary to have the guidance of a good boatman but the same argument holds good as to stream-fishing... (shrink)

In this text we will focus on the interpretation of law, specifically on the question of how the meaning of legal texts is created and recreated through judicial interpretation of law. To be able to explain how this happens, we will use the philosophy of language, in particular the philosophy of the late Ludwig Wittgenstein, Wilfrid Sellars and Robert B. Brandom. In their view, language is not a tool that serves primarily and exclusively to describe a world that exists independently (...) of us and our attitudes, but through language we co-create the world we live in. Many of the things we perceive in the world around us are accessible to us and exist because of our language. (shrink)

This two-volume book, published open access, brings together leading scholars of constitutional law from twenty-nine European countries to revisit the role of national constitutions at a time when decision-making has increasingly shifted to the European and transnational level. It offers important insights into three areas. First, it explores how constitutions reflect the transfer of powers from domestic to European and global institutions. Secondly, it revisits substantive constitutional values, such as the protection of constitutional rights, the rule of law, democratic participation (...) and constitutional review, along with constitutional court judgments that tackle the protection of these rights and values in the transnational context, e.g. with regard to the Data Retention Directive, the European Arrest Warrant, the ESM Treaty, and EU and IMF austerity measures. The responsiveness of the ECJ regarding the above rights and values, along with the standard of protection, is also assessed. Thirdly, challenges in the context of global governance in relation to judicial review, democratic control and accountability are examined. On a broader level, the contributors were also invited to reflect on what has increasingly been described as the erosion or 'twilight' of constitutionalism, or a shift to a thin version of the rule of law, democracy and judicial review in the context of Europeanisation and globalisation processes. The national reports are complemented by a separately published comparative study, which identifies a number of broader trends and challenges that are shared across several Member States and warrant wider discussion. The research for this publication and the comparative study were carried out within the framework of the ERC-funded project 'The Role and Future of National Constitutions in European and Global Governance'. The book is aimed at scholars, researchers, judges and legal advisors working on the interface between national constitutional law and EU and transnational law. The extradition cases are also of interest to scholars and practitioners in the field of criminal law. Anneli Albi is Professor of European Law at the University of Kent, United Kingdom. Samo Bardutzky is Assistant Professor of Constitutional Law at the University of Ljubljana, Slovenia. (shrink)

In a society marked by transnational migration and religious globalization, spatial factors are assuming a central role in the understanding of social relations. This is most prominent in urban areas, where the coexistence of culturally and religiously diverse subjects imposes a forced sharing of territory. Starting from a study of the semiotic concept of the city, the contribution aims first of all to explore the claimed right of the other to use public space through the creation of _aedes sacrae_. It (...) will show how the construction of a place of worship of a ‘minority’ religion can alter the pre-existing urban geography, leaving its imprint on space. Through a brief examination of the Italian constitutional jurisprudence on the so-called “anti-mosque” legislation, the paper will also outline a semantically relational conception of the religious building, offering a starting point for a rethinking of spatial organisation. An intercultural application of law is then needed insofar as the aim is towards a non-hegemonic polyphonic rewriting of urban territory. (shrink)

Judges wield enormous power in modern society and it is not surprising that scholars have long been interested in how judges think. The purpose of this article is to examine how US judges reason on language issues. To understand how courts decide on comprehension of constitutional rights by speakers with Limited English Proficiency (LEP), I analyzed 460 judicial opinions on appeals from LEP speakers, issued between 2000 and 2020. Two findings merit particular attention. Firstly, the analysis revealed that in 36% (...) of the interrogations, LEP speakers were advised of their rights only in English. This means that two decades after the Executive Order 13166 (2000) _Improving Access to Services for Persons with Limited English Proficiency_, law enforcement still doesn’t have adequate resources to advise LEP speakers of their constitutional rights in their primary languages. Secondly, the analysis revealed that some courts treat second language proficiency as an all-or-none phenomenon. This approach results in linguistic discrimination against LEP speakers who cannot comprehend legal language but are denied the services of an interpreter because they can answer basic questions in English. I end the discusson with recommendations for best practices in delivery of constitutional rights. (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)

The article analyzes the impact of modern digital technologies used in the information society on democracy, human rights, and the rule of law in general. Both positive and negative aspects of such impact are considered. The importance of this topic is due to the need for further deepening of scientific knowledge related to the development of the rule of law in the information society and insufficient research from the legal point of view of current theoretical problems of the rule of (...) law in the digital era. The purpose of this article is to study the rule of law as a principle of the modern state of the 21st century and to study the problems in matters of human rights that have arisen with the development of modern digital technologies. The study of this issue is quite relevant, considering the conclusions, made as a result of our work, can be taken into account in further theoretical developments of international and national human rights protection aimed at improving the effectiveness of human rights judicial protection and improving current legislation. (shrink)

Recent controversial cases of killings by police have generated competing Black Lives Matter and Blue Lives Matter movements. Blue Lives Matter proponents claim that the focus on and protests in light of police killings of unarmed black persons is unwarranted. Part of this dispute turns on the moral evaluation of the killing of citizens by law enforcement. To address the dispute, I develop an account of the special moral obligations of law enforcement and show how it can be applied. I (...) argue that members of law enforcement have special moral obligations against killing citizens. The account generates moral guidance for law enforcement in a number of other ways. It implies, finally, that the Blue Lives Matter proponents fundamentally misunderstand the ethics of law enforcement. (shrink)

This paper is concerned with the question of the truth conditions of nomological statements. My fundamental thesis is that it is possible to set out an acceptable, noncircular account of the truth conditions of laws and nomological statements if and only if relations among universals - that is, among properties and relations, construed realistically - are taken as the truth-makers for such statements. My discussion will be restricted to strictly universal, nonstatistical laws. The reason for this limitation is not that (...) I feel there is anything dubious about the concept of a statistical law, nor that I feel that basic laws cannot be statistical. The reason is methodological. The case of strictly universal, nonstatistical laws would seem to be the simplest case. If the problem of the truth conditions of laws can be solved for this simple subcase, one can then investigate whether the solution can be extended to the more complex cases. I believe that the solution I propose here does have that property, though I shall not pursue that question here.1. (shrink)

A broad range of scholars contend that the rule of law is indifferent to human rights. I call this view the "no-rights thesis," and attempt to unsettle it. My argument draws on the work of Lon L. Fuller and begins with the idea that the fundamental justification of the rule of law rests on a juridical conception of human agency, one that finds expression in the legal and moral claims that can arise from human agency within the context of legal (...) relationships. I argue that the state and its legal subjects are in a particular kind of legal relationship with one another, a fiduciary relationship, and that the content of the state's ensuing fiduciary obligation is the rule of law. Because the rule of law is intelligible in terms of the right, and independently of the good, it follows that compliance with the rule of law necessarily makes a moral difference regardless of how poorly the state lives up to the demands of the good. This is a conceptual rather than an empirical claim, and it leads to the conclusion that respect for human agency in the context of the state-subject fiduciary relationship necessarily entails respect for human dignity, respect for human dignity entails respect for human rights, and therefore a commitment to the rule of law entails a commitment to human rights. (shrink)

Speech and thought about what the law is commonly function in practical ways, to guide or assess behavior. These functions have often been seen as problematic for legal positivism in the tradition of H.L.A. Hart. One recent response is to advance an expressivist analysis of legal statements (Toh), which faces its own, familiar problems. This paper advances a rival, positivist-friendly account of legal statements which we call “quasi-expressivist”, explicitly modeled after Finlay’s metaethical theory of moral statements. This consists in a (...) descriptivist, “rule-relational” semantics combined with a pragmatic account of the expressive and practical functions of legal discourse. We argue that this approach is at least as well-equipped as expressivism to explain the motivational and prescriptive features of “internal” legal statements, as well as a fundamental kind of legal disagreement, while being better positioned to account for various “external” uses of the same language. We develop this theory in a Hartian framework, and in the final part of the paper argue (particularly against Toh’s expressivist interpretation) that Hart’s own views in The Concept of Law are best reconstructed along such quasi-expressivist lines. (shrink)

The article investigates the significance of syntax in the multilingual EU law. It attempts to respond to the question whether syntax is apt to contribute to the uniformity of that law and how, with regard to this function, it relates to the (widely disputed yet uncontested) semantic and pragmatic methods of achieving such a uniformity. In order to respond to this question, the article firstly, recalls fundamental concepts which would help conceptualize the endeavour and, secondly, presents examples of analysis of (...) syntax arrangements which can be deemed representative for the study of the said problem of contribution. The study finds that EU law (expressed in 24 official languages which have equal authentic status) relies on diversified syntax of its respective constitutive languages. Syntax structures used in respective language versions of EU law represent narrower, law-specific, form of syntax structures available in these languages. Its specificity is determined mostly by legislative traditions of respective EU member states. Syntactic structures of EU law produced in different official languages do not represent a single pattern because of diversified mode of producing illocutionary value of provisions in which strongly idiomatic modal verbs (modal operators) and even special modal structures (not necessarily containing modal verbs) are used to express legal norms. They also differ when it comes to their law-specific compositionality, i.e. flexibility of different syntax structure to produce the same meaning and, in the same time, to preserve their genre/register informational value. Notwithstanding, these structures have well pronounced and system-significant common features within respective Germanic, Romanic, and Slavic families of languages in which EU law is mostly reproduced. The sentence structure and the relevant register of EU law provisions are the same for respective versions of EU texts of law expressed in the languages belonging to the respective three language families which were examined for the sake of this study. These common features are re-enforced by the synoptic mode of producing EU law which imposes formal resemblance of provisions reproduced in respective EU official languages to each other. The multilingual EU legislator also uses patterns which grant legal text the relevant register, yet its specific EU character ultimately transpires through semantic aspects of EU texts rather than their mere syntax. The unity of the system is achieved most strongly through the EU specific interpretation, where the teleological methods (which can be conceived as a language means to achieve EU law goals and objectives at the pragmatic level) are of utmost importance. Thus, there is no EU-specific syntax which would, as such, contribute to unity of EU law. Instead, unity is achieved in the area of semantics and pragmatics. The well exposed anaphoric character of EU law (as any other type of law) may contribute to narrowing down possibility for differentiation of respective language versions of EU law. (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)

This collection represents the latest research from leading scholars whose work has helped to frame our understanding of Bentham since the publication of H. L. A. Hart's Essays on Bentham. The authors explore fundamental areas of Bentham's thought, including the relationship between the rule of law and public opinion; law and popular prejudices or manipulated tastes; Bentham's methodology versus Hart's; sovereignty and codification; and the language of natural rights. Drawing on original manuscripts and volumes in The Collected Works of Jeremy (...) Bentham, the chapters combine philosophical and historical approaches and offer new and more faithful interpretations of Bentham's legal philosophy and its development. As a coherent whole, the book challenges the dominant understandings of Bentham among legal philosophers and rescues him from some famous mischaracterizations. (shrink)

The dialectical connection of law and culture is the relevant subject of research in philosophy, theory, and sociology of law, first and foremost due to the fact that insufficient theoretical substantiation lawmaking activity of politicians currently generates serious issues. Those of one cultural-legal traditions are unable to understand their partners belonging to another legal culture. Any modern legal theory should take into account the definition of culture the backbone factor for modern civilization. The novelty this research consists in examination of (...) the fundamental aspects of “law-culture” system alongside on the analysis of views of Western researchers previously unfamiliar to the Russian science. The goal of this work lies in revealing the key aspects of dialectical connection of law and culture and their correlation in modern era. The philosophy of law features ambivalent interpretation of the phenomenon of law: 1) as one of the forms of collective consciousness – along with culture, morality, philosophy, science,or religion; 2) in broad view of culture as a synonym of civilization, law would manifests as the crucial element of culture that generates multiple realities of sociocultural life of the people, society and the state. The research of dialectical connection of law and culture developed in the modern era, may contribute to resolution of complex problems that emerge in the contradictory “law-culture” system, which is of vital importance for the existence of separate national communities, as well as for survival of all the entire humanity. (shrink)

Habermas dialogically recasts the Kantian conception of moral autonomy. In a legal-political context, his dialogical approach has the potential to redress certain troubling features of liberal and communitarian approaches to democratic politics. Liberal approaches attach greater normative weight to negatively construed individual freedoms, which they seek to protect against the interventions of political authority. Communitarian approaches prioritize the positively construed freedoms of communal political participation, viewing legal-political institutions as a means for collective ethical self-realization. Habermas’ discourse theory of law and (...) democracy seeks to overcome this competition between the negative and positive liberties. Doing so entails reconciling private and public autonomy at a fundamental conceptual level. This is his co-originality thesis, which seeks to show that private and public autonomy are internally connected and evenly balanced. I support his aim but argue that he fails to achieve it due to an unsatisfactory account of private autonomy. I suggest an alternative dialogical conception of autonomy as ethically self-determining agency that would enable him to establish his thesis. (shrink)

Freedom and the Rule of Law takes a critical look at the historical beginnings of law in the United States, and how that history has influenced current trends regarding law and freedom. Anthony Peacock has compiled articles that examine the relationship between freedom and the rule of law in America. The rule of law is fundamental to all liberal constitutional regimes whose political orders recognize the equal natural rights of all.

Legal systems such as those in the United States and Canada, which include fundamental moral rights or provisions in their constitutions, present an interesting and difficult problem for legal positivists. Are such moral standards to count among the existence or validity conditions of laws in those systems, or are they better understood as fundamental objectives or justification conditions which laws may or may not achieve or respect in practice? The first option, known as inclusive legal positivism, expands the traditional positivist (...) separation thesis to mean that although there is no necessary connection between law and morality in general, it is possible that in some systems it is a necessary truth that laws reproduce or satisfy certain demands of morality. The second option, known as exclusive legal positivism, denies this possibility, and maintains instead that it is never a necessary condition that laws reproduce or satisfy certain demands of morality, even if such demands are constitutionally recognized. On the exclusive account, in the context of constitutional states such as the U.S. and Canada, the separation thesis is expanded to mean that there is no necessary connection between the existence and content of laws and the demands of political morality typically included in constitutions. In this paper I defend exclusive positivism and argue that it best follows from traditional positivist commitments and avoids what I take to be a critical problem with inclusive positivism. Further, I argue that the concepts, distinctions, and arguments deployed in the internal positivist debate are also of value in the wider debate between H.L.A. Hart and Ronald Dworkin. (shrink)