The Dialectical Forge identifies dialectical disputation as a primary formative dynamic in the evolution of pre-modern Islamic legal systems, promoting dialectic from relative obscurity to a more appropriate position at the forefront of Islamic legal studies. The author introduces and develops a dialectics-based analytical method for the study of pre-modern Islamic legal argumentation, examines parallels and divergences between Aristotelian dialectic and early juridical jadal-theory, and proposes a multi-component paradigm—the Dialectical Forge Model—to account for the power of jadal in shaping (...) Islamic law and legal theory.In addition to overviews of current evolutionary narratives for Islamic legal theory and dialectic, and expositions on key texts, this work shines an analytical light upon the considerably sophisticated “proto-system” of juridical dialectical teaching and practice evident in Islam’s second century, several generations before the first “full-system” treatises of legal and dialectical theory were composed. This proto-system is revealed from analyses of dialectical sequences in the 2nd/8th century Kitāb Ikhtilāf al-ʿIrāqiyyīn / ʿIrāqiyyayn through a lens molded from 5th/11th century jadal-theory treatises. Specific features thus uncovered inform the elaboration of a Dialectical Forge Model, whose more general components and functions are explored in closing chapters. (shrink)

In “Elementa Juris Naturalis” (1671) G.W. Leibniz formulated the genius intuition about the fundamental unity of juridical and Aristotelian modalities. Interpreting and explicating this intuition by virtue of the deontic logic G.W. Wright arrived to the conclusion that the unity of modalities in question is not an equivalence relation but an analogy one. However a complement for G.W. Wright’s explication of the intuition of G.W. Leibniz was submitted. This complement was a two-valued algebra of formal-natural-law philosophy of juridical (...) and Aristotelian modalities as moral-legal evaluation-functions determined by one variable. In thepresent paper I submit a binary generalization of the mentioned unary complement. By virtue of this generalization some significant shortcomings of the complement in question are eliminated. The generalization deals with the modalities as moral-legal evaluation-functions determined by two variables. (shrink)

This paper provides a metaphysical framework which enables the possibility of the hypostatic union. More specifically, social ontology will be used to philosophically ground the distinction between nature or substance on the one hand, and person on the other hand, which is crucial to that debate. There are some historical precedents for a juridical approach in christological debates, but the main sections develop a systematic metaphysical account. Relying on a generic version of dispositional realism, and the distinction between the (...) ability space and the liberty space of a person, a person is the locus or nexus of contingent activations of alternative possibilities. This is distinct from the set or range of alternative possibilities open to a person. Persons can therefore function as artificial persons, paradigmatically exemplified in sovereign states. Extending that framework to the supernatural level enables the possibility of a divine person uniting a divine and a human nature. (shrink)

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

Expert knowledge - a concept associated with Ryle’s distinction of knowledgethat and knowledge-how - functions in distinct areas of knowledge and social expertise. Consisting of both propositional and procedural knowledge, expertise is performative in its essence. It depends not only on expert’s experience and cognitive competences, but also on his or her social and institutional position. The paper considers the role of heuristic and intuitional abilities, including particular experts’ cognitive biases, as the vital and indispensable part of expertise. On the (...) basis of selected managerial and juridical examples it analyzes the epistemological issues: the autonomy versus dependence of expert knowledge as well as the influence of social-cognitive circumstances on expertise. (shrink)

The art of law -- Proportionality between means and ends: a study in the art of law -- The function of legal methods in the balancing of interests: a study in the judicial process -- The legal systems of old and new China: a comparison -- Two forms of tortious liability in the modern Chinese law -- The problem of extraterritoriality in China -- A note on Rizæff Frères v. the Soviet Mercantile Fleet -- A note on the evidence (...) in the "Garcia case" --. (shrink)

The objective of the article is to present Hans Kelsen’s basic norm concept that allows the combination of the two relevant dimensions in relation to juridical science, namely the positivity and validity of law. The role of the concept of basic norm is presented by the author of the Reine Rechtslehre with reference to Kant as a concept enabling formulation of an answer to the question “To what extent is it possible to interpret certain facts as objectively valid legal (...) norms?” The epistemological problem of the object of cognition of juridical science is connected with the issue of normativity. According to Kelsen, only the assumption of a certain nonpositive hypothetical norm regulating the legislation of norms of a given system enables normative interpretation of certain facts. The basic norm authorizes the way of issuing norms, yet not their content. The structure of the legal order creates a hierarchical system in which the higher category norms delegate the law-making power to create the lower category norms. The legal system creates a dynamic system of norms. (shrink)

ABSTRACTAt the heart of the criminal reform proposed in Cesare Beccaria’s 1764 Dei delitti e delle pene are the principles of penal parsimony derived from a precise interpretation of the social contract. Punishment, being no more than a necessary evil devoid of any intrinsic virtue, must serve no more than a preventative function to the smallest possible extent; its application strictly bound by the principle of legality. Beccaria’s criminal philosophy, therefore, attempts to drastically reduce the power of the penal (...) institution. After recounting its principal aspects, this article seeks to propose a new interpretation of Beccaria’s theory from the perspective of its historical context. The Italian Enlightenment philosopher did not so much express indignation against the barbarism of the Milanese penal system, but rather instigate a rebellion against the political dominance of its patriciate, whose power had long been validated by its juridical functions. In this respect, Beccaria sought to combat the political hegemony of the jurists, concluding his treatise by excluding juridical thought from, and thus removing the intellectual foundations of, the practice of criminal law. (shrink)

The major tendency within the discipline of political science has been to try to achieve a science modeled on the natural sciences and mathematics, following the pattern of other social sciences. This tendency has led to many reductionistic efforts to explain political behavior in terms of one or more functions, such as power, linguistic, psychical, or the economic. The institutional community of government and citizens—the political community or state—is thus overlooked or reduced to one or more functions. In critique of (...) this tendency, this paper shows how the work on entities and functions by the Dutch legal philosopher Herman Dooyeweerd illumines the errors of reductionism and points the way to a multi-functional entity science of the political community. (shrink)

Juridical councils that render rulings on bioethical issues for Muslims living in non-Muslim lands may have limited familiarity with the foundational concept of wilāyah (authority and governance) and its implications for their authority and functioning. This paper delineates a Sunni Māturīdi perspective on the concept of wilāyah, describes how levels of wilāyah correlate to levels of responsibility and enforceability, and describes the implications of wilāyah when applied to Islamic bioethical decision making. Muslim health practitioners and patients living in the (...) absence of political wilāyah may be tempted to apply pragmatic and context-focused approaches to address bioethical dilemmas without a full appreciation of significant implications in the afterlife. Academic wilāyah requires believers to seek authentication of uncertain actions through scholarly opinions. Fulfilling this academic obligation naturally leads to additional mutually beneficial discussions between Islamic scholars, healthcare professionals, and patients. Furthermore, an understanding derived from a Māturīdi perspective provides a framework for Islamic scholars and Muslim health care professionals to generate original contributions to mainstream bioethics and public policy discussions. (shrink)

“What characterizes the act of justice is not resort to a court and to judges; it is not the intervention of magistrates. What characterizes the juridical act, the process or the procedure in the broad sense, is the regulated development of a dispute. And the intervention of judges, their opinion or decision, is only ever an episode in this development. What defines the juridical order is the way in which one confronts one another, the way in which one (...) struggles. The rule and the struggle, the rule in the struggle, this is the juridical.” - Michel Foucault Penal Theories and Institutions is the title Michel Foucault gave to the lectures he delivered at the Collège de France from November 1971 to March 1972. In these lectures Michel Foucault presents for the first time his approach to the question of power that will be the focus of his research up to the writing of Discipline and Punish and beyond. His analysis starts with a detailed account of Richelieu’s repression of the Nu-pieds revolt and then goes on to show how the apparatus of power developed by the monarchy on this occasion breaks with the system of juridical and judicial institutions of the Middle Ages and opens out onto a “judicial State apparatus”, a “repressive system”, whose function is focused on the confinement of those who challenge its order. Michel Foucault systemizes the approach of a history of truth on the basis of the study of “juridico-political matrices” that he had begun in the previous year’s lectures and which is at the heart of the notion of “knowledge-power”. In these lectures Foucault develops his theory of justice and penal law. The appearance of this volume marks the end of the publication of the series Foucault’s courses at the Collège de France. (shrink)

“What characterizes the act of justice is not resort to a court and to judges; it is not the intervention of magistrates (even if they had to be simple mediators or arbitrators). What characterizes the juridical act, the process or the procedure in the broad sense, is the regulated development of a dispute. And the intervention of judges, their opinion or decision, is only ever an episode in this development. What defines the juridical order is the way in (...) which one confronts one another, the way in which one struggles. The rule and the struggle, the rule in the struggle, this is the juridical.” - Michel Foucault Penal Theories and Institutions is the title Michel Foucault gave to the lectures he delivered at the Collège de France from November 1971 to March 1972. In these lectures Michel Foucault presents for the first time his approach to the question of power that will be the focus of his research up to the writing of Discipline and Punish (1975) and beyond. His analysis starts with a detailed account of Richelieu’s repression of the Nu-pieds revolt (1639-1640) and then goes on to show how the apparatus of power developed by the monarchy on this occasion breaks with the system of juridical and judicial institutions of the Middle Ages and opens out onto a “judicial State apparatus”, a “repressive system”, whose function is focused on the confinement of those who challenge its order. Michel Foucault systemizes the approach of a history of truth on the basis of the study of “juridico-political matrices” that he had begun in the previous year’s lectures (Lectures on the Will to Know) and which is at the heart of the notion of “knowledge-power”. In these lectures Foucault develops his theory of justice and penal law. The appearance of this volume marks the end of the publication of the series Foucault’s courses at the Collège de France (the first volume of which was published in 1997). (shrink)

For corrective justice, liability is the consequence of the parties' being correlatively situated as the doer and sufferer of an injustice, and the remedy is seen as undoing that injustice to the extent possible. Combining consideration of legal doctrine and private law theory, this article applies the framework of corrective justice to gain-based damages for torts. Within this framework, restitutionary damages ought to be available only insofar as they correspond to a constituent element in the injustice that the defendant has (...) done to the plaintiff. The radical proposal that allows restitutionary damages for any wrongful gain is unsatisfactory because it fails to link the damages that the plaintiff receives to the normative quality of the defendant's wrong. In contrast, dealings in another's property give rise to such damages because the idea of property includes within the owner's entitlement the potential gainsfrom the property's use or alienation. Restitutionary damages should not be seen as serving a deterrent or punitive function; such a function cannot account for why the plaintiff, of all people, is entitled to the defendant's gain. Properly understood, even situations where the plaintiff's wilfulness or calculation increases the damage award fit within the framework of corrective justice. The corrective justice approach thus repudiates the notion that restitutionary damages are occasions for the promotion of social purposes extrinsic to the juridical relationship between the parties. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Politics Is a Mushroom: Worldly Sources of Rule and Exception in Carl Schmitt and Walter BenjaminKam Shapiro (bio)Life is not a mushroom growing out of death.—Carl Schmitt, The Visibility of the ChurchTo isolate death from life, not leaving the one intimately woven in the other, and each one entering into the other’s midst—this is what one must never do.—Jean-Luc Nancy, L’intrus1Carl Schmitt’s theory of the exception was bound up (...) with a thoroughgoing critique of philosophies of immanence, materialism, and “atheism,” which he treated as interchangeable. In his early writings, he adopted the Christian perspective according to which postlapsarian nature cannot by itself yield a juridical order, or in his poetic phrase, “life is not a mushroom growing out of death.” Yet—in accord with Catholic doctrine—he also found sources of life, or law, in this world. While he repudiated theories of collective self-legislation, he embraced a popular sovereign empowered to impose form on a chaotic society. In Political Theology (1922), he compared the form-giving power of the sovereign to an act of divine intervention. Law, he argued, can only function in a lawful or “normal” situation that precedes formalization, and the sovereign “produces and guarantees the situation in its totality” [13]. In The Crisis of Parliamentary Democracy (1923) Schmitt retained his theological terms: “A scientific study of democracy must begin with a particular aspect that I have called political theology” [32]. In the modern age, democratic constituent power (pouvoir constituant) replaces the will of God as the transcendent source of a substantial order, namely democratic homogeneity. Democratic will-formation thereby becomes an act prior to its subject, or as Schmitt wrote, “[...] only political power, which should come from the people’s will, can form the people’s will in the first place” [Crisis 28]. A variety of democratic theorists dwell on the paradoxical character of democratic sovereignty, sometimes tracing it back to Rousseau’s well-known formulations [see esp. Connolly and Honig]. They highlight the gap between a transcendent (ideal or fictive) will in whose name political power acts, and the bounded, material consensus it forms, ostensibly rendering the latter vulnerable to challenge. As I argue, however, a closer look at Rousseau’s discussion of democratic founding in On the Social Contract reveals instead a dynamic relay between dispersed substantial or immanent sources of affiliation, on the one hand, and various agents and techniques of political power that draw on and combine them in a collective will, on the other, or what I call the virtual and the virtuosic.2 After briefly exploring this dynamic in Rousseau’s [End Page 121] On the Social Contract, I will highlight similar dynamics at work in Schmitt’s Weimar writings, examining three instances: the complexio oppositorum (1923), national myth (1923), and the polemical opposition of friend and enemy (1927), focusing especially on the first. Contrary to familiar readings of Schmitt’s metaphysical “exceptionalism,” I argue that for Schmitt, as for Rousseau, political power does not create a normative order from a vacuum, and the apparent transcendence of sovereign authority has a variety of worldly sources.3 Finally, I consider what I call “democratic virtuosity,” or virtuosity from below, focusing on Walter Benjamin’s repudiation of sovereign acts of lawmaking or law preserving in favor of ongoing collective habit-formation. As I argue, Benjamin returns spiritual force to the material world not only to shatter human authorities, but also to democratize creation.Rousseau—Anticipating the PeopleIn the Social Contract, Rousseau formulated the paradox of democratic founding to which so many, including Schmitt, would return. “In order for an emerging people to appreciate the healthy maxims of politics, and follow the fundamental rules of statecraft, the effect would have to become the cause; the social spirit, which should be the result of the institution, would have to preside over the founding of the institution itself; and men would have to be prior to laws what they ought to become by means of laws” [Rousseau 69]. As Rousseau argues, a constitution can form a general will only if it commands the loyalty of the people, that is, if there is... (shrink)

Abstract“[…︁] mein Recht muss mir werden!” Hermann Bahr’s Tragicomedy­ Der Querulant­ (1914). At the end of the eighteenth century, people who became notorious for their excessive engagement in legal proceedings started being labeled as “querulents” or “paranoid litigants”. The term “querulents” first appeared in the General Order of the Court for the Prussian States (Allgemeine Gerichtsordnung für die Preußischen Staaten) from July 6, 1793. From there on, the spectrum of juridical measures undertaken against the so‐labeled litigators included classifying these (...) persons as ineligible for legal action and psychiatric hospitalization. The paper discusses to what extent Hermann Bahr rearranges psychiatric and legal knowledge about this special type of the complainer in his tragicomedy Der Querulant, premiered in 1914. This concerns, first, the theatricality of the body and speech, secondly, the use of cultural techniques of writing and, thirdly, conflicting notions of justice. Therefore, the paper analyzes the aesthetic function of querulous behavior in the dramatic structure of the play from the point of view of both media theory and literary theory. (shrink)

The death penalty is so deeply rooted in the history of humanity that it will not be possible to abolish it any time soon, together with its ancestral models, such as lynching, stoning and torture. There is little use in appealing to absolute ethical values or to juridical principles held to be universal. A realistic approach suggests a careful consideration of the function the death penalty performed – and still performs – in the structures of political power and (...) in the hierarchical and repressive logic of religions, be they transcendent or nontranscendent. The struggle against the death penalty cannot but coincide with a wide-ranging political and cultural battle against the philosophies and ideologies that venerate “temporal idols” and demand an absolute faith tirelessly decreeing absolute punishments. The supreme punishment has always been a “religious penalty.” The supreme and definitive punishment is founded on a supreme and definitive certainty. The dogmatic certainty of the supreme judge knows no compassion – knows not the feeling of humanity’s common suffering and unhappiness; such certainty makes no provision for the misery, fragility and vulnerability of the human condition. Capital judgment upsets the only indisputable human solidarity – our solidarity against death. (shrink)

The chapter of Max Weber’s The Religion of China: Confucianism and Taoism analyzes the basic life orientations within Confucian ethics, and their economic implications. The author suggests that since the Chinese civilization had no powerful independent social class of priesthood, its functions were performed by the state bureaucracy. Furthermore, the author points out the absence of natural law and formal juridical logic in Chinese life, which had a significant impact on Chinese legal consciousness. In the main part of the (...) chapter, the author reveals the essence of Confucianism as a type of rational secular ethics. He emphasizes the freedom of metaphysics, and the secular nature of Confucianism. Weber makes the notion of “decency” central to his analysis of the Confucian ethical worldview. He also demonstrates, through the concept of “deference”, the structural identity of personal relationships within the family and the bureaucratic hierarchy. The economic views of Confucian-educated bureaucrats, or the so-called mandarins, is analyzed as based on the strict rejection of any professionalization and specialization. The author emphasizes the positive attitude of Confucianism towards personal wealth and well-being, which was not perceived as an ethical problem. Weber underlines the importance of a classical literary education of potential candidates for responsible positions in the civil service, and the resulting personal benefits. Weber also posits the fundamentally pacifist nature of Confucianism. Weber concludes with the thesis of the absence in Confucianism of any methodical life orientations that characterize the religions of salvation. (shrink)

?Hegel? and?human rights? are rarely conjoined, and the designation?human rights? appears rarely in his works. Indeed, Hegel has been criticised for omitting civil and political rights all together. My surmise is that readers have looked for a modern Decalogue, and have neglected how Hegel justifies his views, and hence just what views he does justify. Philip Pettit has refocused attention on republican liberty. Hegel and I agree with Pettit that republican liberty is a supremely important value, but appealing to its (...) value, or justifying it by appeal to reflective equilibrium, are insufficient both in theory and in practice. By reconstructing Kant?s Critical methodology and explicating the social character of rational justification in non-formal domains, Hegel shows that the republican right to non-domination is constitutive of the equally republican right to justification - both of which are necessary requirements for sufficient rational justification in all non-formal domains, including both claims to rights or imputations of duties or responsibilities. That is the direct moral, political and juridical implication of Hegel?s analysis of mutual recognition, and its fundamental, constitutive role in rational justification. Specific corollaries to the fundamental republican right to non-domination must be determined by considering what forms of illicit domination are possible or probable within any specific society, in view of its social, political and economic structures and functioning. nema. (shrink)

Over the past 15 years we have seen the rise of a field of inquiry known as Whiteness Studies. Two of its major tenets are (1) that white identity is socially constructed and functions as a racial norm and (2) that those who occupy the position of white subjectivity exercise ‘white privilege’, which is oppressive to non-whites. However, despite their ubiquitous use of the term ‘norm’, Whiteness Studies theorists rarely give any detailed account of how whiteness serves to normalize. A (...) case is made here that we can only understand how whiteness normalizes if we place the development of white racial subject positions within the context of the development of normalizing biopower that Foucault describes in his work through the 1970s. Once that context is provided, it becomes clear that a larger problem exists in Whiteness Studies, one evident in the use of the concept of ‘white privilege’. Whiteness Studies theorists have not thoroughly critiqued the juridical conception of power that they have inherited from traditional political theory; as a result, they cannot get away from psychological accounts of the origins of racism, even though they usually state very clearly that they believe racism is an institutional phenomenon and racist subject positions are formed within networks of power. If Whiteness Studies is to accomplish both its analytical and its political goals, its theorists need to pay close attention to Foucault’s work on biopower. (shrink)

In this paper I argue that the discourse theoretic account of human rights defended by Jürgen Habermas contains a fruitful tension that is obscured by its dominant tendency to identify rights with legal claims. This weakness in Habermas’s account becomes manifest when we examine how sweatshops diminish the secure enjoyment of subsistence, which Habermas himself (in recognition of the UDHR) recognizes as a human right. Discourse theories of human rights are unique in tying the legitimacy of human rights to democratic (...) deliberation and consensus. So construed, their specific meaning and force is the outcome of historical political struggle. However, unlike other legal rights, they possess universal moral validity. In this paper I argue that this tension between the legal and moral aspects of human rights can be resolved if and only if human rights are conceived as moral aspirations and not simply as legal claims. In particular, I shall argue that there are two reasons why human rights must be understood as moral aspirations that function non-juridically: First, the basic human goods to which human rights provide secure access are determinable only in relation to basic human capabilities that are progressively revealed in the course of an indefinite (fully inclusive and universal) process of collective learning; second, the institutional impediments to enjoying human rights are cultural in nature and cannot be remedied by means of legal coercion. (shrink)

Dissertation outline: I begin my dissertation by charting and assessing two competing approaches to theorise about the nature of knowledge – modalism and explanationism. According to the former, knowledge equates with a belief which is true in a relevant set of possible worlds; according to the latter, knowledge is a matter of believing the truth on the basis of the right explanation. When it comes to the competition between modalism and explanationism in traditional epistemology, I reject explanationism and I endorse (...) modalism: I move novel objections against the most recent explanationist account of knowledge and I develop a novel version of modalism. This new version of modalism consists of a different safety condition which is informed by the etiological theory of functions made popular in the philosophy of biology. I argue that it does better than both extant versions of modalism and extant versions of explanationism. I then move on to the contrast between modalism and explanationism in the context of applied legal epistemology. By emphasising a few structural connections between knowledge and legal proof, epistemologists have moved quite freely from a modalist account of knowledge to a modalist account of legal proof. A case in point is Duncan Pritchard, who proposes a modal condition for knowledge and then extends it to legal standards of proof. On this second issue, I see things differently: in legal epistemology, I endorse explanationism and I reject modalism. Accordingly, I object to influential modal accounts of legal proof and I offer an alternative explanationist account. I develop an account of legal proof as an inference to the best contrastive explanation: by drawing on up-to-date literature on abductive reasoning in the philosophy of science, I bring into focus hitherto unappreciated connections between the nature of legal proof and the structure of scientific explanation. The final upshot is a well-informed account of legal proof which does away with modal conditions and better captures the nature of juridical proof. My dissertation advances two closely related debates by emphasising a neat separation between modalism and explanationism: while the former is the right approach to theorise about the nature of knowledge, only the latter can provide a satisfactory account of legal proof. Such separation offers a new picture of the relationship between knowledge and legal proof, and it provides new insights into several debates at the intersection of traditional and applied legal epistemology. (shrink)

This article explores the tension between the fundamental perception that the provision of privatized services such as health and social care remain inherently public and the absence of any clearly developed juridical concept of ‘public services’ as the basis of judicial control in accordance with public law standards. In a series of recent cases, courts have had the opportunity to determine whether private contractors engaged in the provision of local authority residential and social care services are amenable to judicial (...) review or susceptible to direct vertical proceedings under the Human Rights Act, on grounds that they are performing functions which are by their very nature quintessentially public. However, conflating questions of amenability to review and susceptibility to the Human Rights Act (hereafter HRA), courts have refused to adopt a test based on the public character of a body's functions, irrespective of the source of power. This article acknowledges the constitutional propriety and rationality of a broad based functional test of review. Nevertheless, it is argued that if courts continue to resist such a test, Parliament must legislate to ensure judicial regulation of decisions by independent contractors of health and social care services, in accordance with public law principles and HRA obligations, which transcend the boundaries of their strict contractual undertakings. (shrink)

This paper has its roots in qualitative analysis of accounts produced by an Italian serial killer. Theoretical references are related to symbolic interactionism and its developments in the field of psychology and criminology. The whole contribution is aimed to twofold purposes: A) to provide a set of criteria specifically addressed to study deviant action as system of meanings into two related contexts: the single action itself and the whole life history. According this point, paper introduces the concept of “deviant career” (...) and it explains its development and steps; it also provides some psychological social points of views and contributions that scientific works offers. B) to think about potentialities of accounting interviews as powerful tools in clinical practice and empirical research too.Specifically, we discuss narrative about behaviour and life story as a resource in order to take suggestions about meanings, goals and rules of action. It also suggests something about functions that crime discharges in the whole pathway of one's life. Juridical case analysis, run by means of the software ATLAS.ti, is aimed to demonstrate theoretical reasoning proposed. (shrink)

The relationship between Kant’s “Doctrine of Right” and his broader moral philosophy is a fraught one, with some readers insisting that the two domains are mutually supporting parts of a cohesive practical philosophy and others arguing for their conceptual and legislative independence. In this paper I investigate the reasons for this disparity and argue that both main interpretive camps are mistaken, for Kant’s Rechtslehre can neither be reconciled to his moral philosophy nor stand on its own. I argue that this (...) failure results from Kant’s confused attempt to define the sphere of right as one that functions independently of the moral domain through the construction of non-moral yet categorical imperatives. The result is a fundamental tension in Kant’s text that can only be solved through either collapsing juridical duties into broad moral duties or denying any categorical status to duties of right. (shrink)

This chapter covers the traditional role of responsibility, and the possible connections between response and responsibility. These connections are explored through the advance of trust and the surplus of the extraordinary in relation to the Third Party. The idea of responsibility comes from the sphere of juridical law, and has a theological touch. The classical conception presented suffers from a permanent erosion that is reinforced by systemic constraints. Trust is a natural element of every community that is together applied (...) by common aims in life. The phenomenon of trust refers to the bond, the nexus, which holds together the members of a community, creating the requisite solidarity. The term ‘trust’ or ‘confidence’ should not primarily read as a substantive, but as a verb or as the derivative of a verb. Furthermore, it is noted that the responsive ethics proposed could function as a permanent corrective. (shrink)

In this article I discuss the nature and sense of legal reasoning as reasonableness, i.e. as judgement and equilibrium between normativity and factuality, and as constant approximation between these two dimensions. By phrasing the intertwinement between legal hermeneutics and the nature and function of writing, the structure of the article is constructed so that the focus is on the changes currently occurring with the so-called ‘digital revolution’: in imagining a juridical system administrated through data analysis and algorithms, some (...) contradictions emerge, especially concerning the nature, sense and task of legal hermeneutics. The current shift of paradigm should be first of all addressed starting from the grammatological nature of the revolution at stake. Only from this perspective can the shift be entirely grasped and, at the same time, only from this perspective can the methodological conundrum be deconstructed. (shrink)

After having accomplished an observation of the different problematic that affect the daily life of our city, as reflect of what happens in the rest of the national territory, we have been attracted to implement a juridical analysis to the situation of the donation and organ transplantation in the legal ambit of our country, with the objective to identify the level of efficacy and the normative scope with respect to the situation of people who need a transplant. This restlessness (...) born from the analysis of the law 1716 and its regulation, which ambiguously delimits the functions of the centers of health in what respect to this topic, also to establish the creation of a waiting list and a record, tool which objective would be norm the permanent supply of organs through donation programs. These do not accomplish their objective or being attached to a public policy in the ambit that allow the continuity of the institutions and benefit of the people in need. (shrink)

The theoretical underpinnings of public international law have taken the sovereign status of the nation-state for granted since the beginning of the modern era. After centuries of evolution in legal and political thought, the state's definition as a bounded territorial unit has been strictly codified. The legal development of the nation-state was an ideological project informed by extra-legal considerations. Additionally, the ever-narrowing scope of the juridical idea of sovereignty functioned as a boundary mechanism instrumental in colonising Africa and other (...) regions. While international law claims universal liberalism today, the current system based on sovereign nation-states represents not social inclusion but fierce and dangerous exclusion. -/- The central thesis of this book is that the development of legal sovereignty was, rather than part of the modernist progress narrative, a historically contingent evolutionary regression. While other social systems such as economics and science became globalised, politics and law counterintuitively became more territorialised. It is argued that the nation-state today is not only anachronistic but is dangerously ill-equipped for facing international problems such as the climate crisis or global pandemics. Finally, it also leaves African states and many other formerly-colonised territories at a particular disadvantage by regulating their political practices into a predefined mould. (shrink)

In this article the author writes about Leonardo Polo's juridical thought. He studied in School of Law before he began to work on philosophy. In the paper the author expresses some of Leonardo Polo�s ideas on law: a) What is the definition of law?; b) Is a person's posession of a thing the fundation of his rights? c) The practical function of law in society.

The paper aims to explore the phenomenon of the spread in democracy of new powers – produced by inexhaustible technological developments – from the perspective of the philosophy of Institutions. It traces the original idea of democracy, in which the «government of the people» arises from the conversion of natural liberty into social and political liberty, dwells on the political and juridical meaning of authority, analyses the traditional instruments used to condition human opinions and behaviours, and reconstructs – in (...) light of this itinerary – the functioning and new grammar of the digital order. What opens before us is a fluid and disorganized scenario, dominated by digital systems, algorithms and artificial intelligence, that draws the attention of philosophers and sociologists, jurists and scholars of language and of anthropology. The old single order, outlined by the political and juridical machine of the modern State – which, through an aloof and solemn language, aimed to impart regularity to human behaviour and to give society direction – is replaced by multifarious models of order, each of which is generated by its own logic, practices, and autonomous control techniques. Under the omnipotence of technology, concepts such as authority, liberty, truth and power undergo a vortex of semantic transformations that penetrate a new symbolic space into human reasoning and actions. (shrink)

"Das Rechtssystem geht davon aus, dass der Mensch – und nur der Mensch – eine natürliche Person ist. Das sei ein Irrtum, argumentiert Malte-Christian Gruber, denn die Rechtssubjektivität wird keineswegs alleine mit dem bloßen Menschsein begründet. Es ist die sittliche Autonomie, die den Menschen zu einem »Subjekt, dessen Handlungen einer Zurechnung fähig sind« (Kant) und mithin zur Person macht. Personen werden nicht mit dem Menschsein als solchem identifiziert, sondern durch die Zuschreibung von Handlungs- und Rechtsträgerschaft. Eine solche funktionale Vorstellung von (...) Rechtssubjektivität ist prinzipiell auch dazu imstande, neben Menschen noch weitere autonome Agenten als Träger von Rechten und Pflichten ein- zusetzen, z.B. technische Artefakte und andere nicht-menschliche Agenten. Christoph Menke macht dagegen darauf aufmerksam, dass die Erfindung neuer Rechte das eigentliche Bewegungsgesetz der politischen Emanzipation in der Moderne war. Das begann mit den bürgerlichen Revolutionen und ist immer noch das generelle Modell, mit dem Politik und Theorie operieren, die neue Rechte für nicht-menschliche Lebewesen und Artefakte einfordern. So wie im 19. und 20. Jahrhundert die rechtliche Emanzipation zunächst über die Grenzen bürgerlicher Subjektivität hinausgeführt hat und soziale und kulturelle Rechte erfand, so sollen wir nun den weiteren, konsequenten Schritt tun und auch noch die Bindung der juridischen Anerkennung an die Kategorie menschlicher Subjektivität aufbrechen. Auch Bio- und Artefakte sollen als eigenständige Rechtssubjekte rekonstruiert werden. Es fehlt ihnen allerdings etwas, das in den emanzipatorischen Kämpfen der Vergangenheit schlechthin grundlegend war: Ein Träger von Rechten zu sein, hieß, ein Fordernder von Rechten, ja, ein Kämpfer für Rechte gewesen zu sein. Man konnte keine rechtliche Person als Träger von Rechten sein, ohne ein politisches Subjekt als Kämpfer und Denker von Rechten gewesen zu sein. Wenn die Bindung der rechtlichen Personalität an die menschliche Subjektivität aufgelöst wird, damit es Bio- und Artefakt-Rechte geben kann, löst sich zugleich auch diese Einheit von rechtlicher Personalität und politischer Subjektivität auf, die die moderne Idee der Rechte definiert hatte. The legal system assumes that human beings – and only human beings – are natural persons. That is erroneous, argues Malte-Christian Gruber, because legal subjectivity isn’t founded in humanity alone. It is moral autonomy that makes man into a “subject whose actions are capable of attribution” (Kant) and thus into a person. Personhood is not identified with being human as such, but by the attribution of actions and legal ownership. Besides human beings, such a functional concept of legal subjectivity can in principle also be applied to other autonomous agents as holder of rights and obligations, e.g. techno- logical artifacts and other non-human agents. Christoph Menke in turn points out that the invention of new rights was the actual law of motion of political emancipation in modern times. This began with the bourgeois revolutions and is still the general model with which politics and theory operate to claim new rights for non-human creatures and artifacts. Just as in the 19th and 20th centuries, the legal emancipation initially led beyond the limits of bourgeois subjectivity and in- vented social and cultural rights, so should we make a further consequent step and break with the dependence of juridical recognition on the category of human subjectivity. Also bio- and artifacts are to be reconstructed as independent legal entities. However, they lack something that was absolutely fundamental in the emancipatory struggles of the past: to be a subject of rights meant to have demanded rights, indeed, to have been a fighter for rights. One could not be a legal person and holder of rights without having been a political subject as fighter and thinker of rights. To suspend the dependence of legal personhood on human subjectivity so that there may be bio- and artifact-rights also means to dissolve the unity between legal personality and political subjectivity that once defined the modern idea of rights. ". (shrink)

This paper traces the contradictions of liberal ‘police’ power from Hegel’s analysis of modern polizei to a Foucauldian analysis of the 2011 judicial ruling on the police eviction of Occupy Wall Street protestors from Zucotti Plaza in New York. In the first section, I develop insights from Hegel and Foucault’s analysis of the contradictions of liberal police, whereby power in liberal government incorporates an ‘internal principle of limitation’ that distinguishes it from the unlimited internal objectives of the European police state, (...) while finding itself constantly violating its own internal normative principles. In the second section, I situate liberal police within Foucault’s history of police and the development of a political economy of the poor. In the third section, I challenge Foucault’s own portrayal of liberal police as ‘self-limiting’ in the 1978-79 lectures, through a detailed examination of ‘police’ in the life and thought of Benjamin Franklin. In the final section, I draw upon this historical background of police to analyse the police power jurisprudence laid out in the 2011 Waller v. City of New York ruling on the police eviction of protestors from Zucotti Plaza. Here, I argue that the ruling allows us to see how the discourse of ‘police power’ claims to uphold a (neo)liberal economic-juridical order, while at the same time functioning as a mechanism of repression and security against the ‘dangerous’ (democratic) element within the polity. (shrink)

The aim of this chapter is to reconstruct a hypothetical genealogy of the U.S. national motto “in God we Trust” by comparing the juridical and theological concept of “depositum”. According to Philo of Alexandria, the deposit was the most sacred institutional act of ancient social life, because it had both a religious and a sociological function. According to the Epistulae to Timothy the term ‘deposit’ defined the legacy of the Christian faith of which the disciple of St. Paul (...) was entrusted. His task was to manage this legacy and to spread it among the others. Hence the deposit defined at the same time a contract based upon good faith and a symbolic space of “security”, namely a container that protected an unchangeable content: the oral knowledge transmitted by Christ to the Apostoles and, indirectly, to St. Paul. The depositum was also the procedure through which the word of Christ would acquire all its potential. On the other hand, the contract defined as “depositum” by Roman law was characterized by a centrality of the so-called bona fides and by the distinction between regular and irregular deposit. This means that the principle of good faith should lead the conducts of the manager whose task is exactly to look after an object called Christian faith. How can we interpret the word ‘trust’ according to the juridico-political remarks? The purpose of this chapter is to explain all these related issues. (shrink)

Gaston Bouthol founded a particular sociology known as polemology. Skeptical about the pacifism and critic of the juridical illusion of the international regulation of the peace-phenomenon, he studied the war-phenomenon without moralising prejudices. Polemology, that involves a critic of culture, is focused on the social function of war, known as the most important institution of destruction. The study of major wars enabled him to raise an hypothesis that foresees the periodicity of wars.

The foundations of law. The digest title, De diversis regulis iuris antiqui, and the general principles of law, by P. Stein. Equity in Chinese customary law, by W. Y. Tsao. Prolegomena to the theory and history of Jewish law, by H. Cohn. Juridical evolution and equity, by J.P. Brutau. Reflections on the sources of the law, by P. Lepaulle. The true nature and province of jurisprudence from the viewpoint of Indian philosophy, by M.J. Sethna. On the functions and aims (...) of the state, by G. Del Veccchio.--Concepts of jurisprudence. Legal language and reality, by K. Olivecrona. The logic of the reasonable as differentiated from the logic of the rational (human reason in the making and the interpretation of the law) by L. Recaséns-Siches. Some refections on status and freedom, by W.G. Friedmann. Law and power and their correlation, by M. Reale. The notion of canonical auctoritas with respect to statute, custom and usage, by B.F. Brown. Two theories of "the institution," by J. Stone. (shrink)

The concept of hermeneutic science is outlined by Habermas as a reflection within the ordinary language, addressed to the dialogic dimension of intersubjective recognition and connected to the juridical guarantee. The guarantee function fulfilled by the discursive agreement towards every real dialogue is obvious: it indicates the main reference point for the regulation and coordination of social action, tracing a line of demarcation between being and having to be, facts and norms. Speech, communicative agreement and legal guarantee are (...) mutually qualified terms where the public discussion of institutional issues makes it possible to define the normative validity as non-assimilatory generality, placed beyond any populistic yearning, tracing a line of demarcation between law and power. The idea of deliberative democracy expresses the relationship and distinction between the universalism of rights and the factuality of the norm issuing, between the idea of good and the idea of right, in order to support democratic decision-making legitimacy. Combining the reasons of the markets with those of civil solidarity, through independent forms of regulation both from the obsolete state sovereignties and from the traditional international perspectives, represents a primary challenge of the Habermasian theory where the critical role of the rational public sphere appears fundamental. (shrink)

"Das Rechtssystem geht davon aus, dass der Mensch – und nur der Mensch – eine natürliche Person ist. Das sei ein Irrtum, argumentiert Malte-Christian Gruber, denn die Rechtssubjektivität wird keineswegs alleine mit dem bloßen Menschsein begründet. Es ist die sittliche Autonomie, die den Menschen zu einem »Subjekt, dessen Handlungen einer Zurechnung fähig sind« (Kant) und mithin zur Person macht. Personen werden nicht mit dem Menschsein als solchem identifiziert, sondern durch die Zuschreibung von Handlungs- und Rechtsträgerschaft. Eine solche funktionale Vorstellung von (...) Rechtssubjektivität ist prinzipiell auch dazu imstande, neben Menschen noch weitere autonome Agenten als Träger von Rechten und Pflichten ein- zusetzen, z.B. technische Artefakte und andere nicht-menschliche Agenten. Christoph Menke macht dagegen darauf aufmerksam, dass die Erfindung neuer Rechte das eigentliche Bewegungsgesetz der politischen Emanzipation in der Moderne war. Das begann mit den bürgerlichen Revolutionen und ist immer noch das generelle Modell, mit dem Politik und Theorie operieren, die neue Rechte für nicht-menschliche Lebewesen und Artefakte einfordern. So wie im 19. und 20. Jahrhundert die rechtliche Emanzipation zunächst über die Grenzen bürgerlicher Subjektivität hinausgeführt hat und soziale und kulturelle Rechte erfand, so sollen wir nun den weiteren, konsequenten Schritt tun und auch noch die Bindung der juridischen Anerkennung an die Kategorie menschlicher Subjektivität aufbrechen. Auch Bio- und Artefakte sollen als eigenständige Rechtssubjekte rekonstruiert werden. Es fehlt ihnen allerdings etwas, das in den emanzipatorischen Kämpfen der Vergangenheit schlechthin grundlegend war: Ein Träger von Rechten zu sein, hieß, ein Fordernder von Rechten, ja, ein Kämpfer für Rechte gewesen zu sein. Man konnte keine rechtliche Person als Träger von Rechten sein, ohne ein politisches Subjekt als Kämpfer und Denker von Rechten gewesen zu sein. Wenn die Bindung der rechtlichen Personalität an die menschliche Subjektivität aufgelöst wird, damit es Bio- und Artefakt-Rechte geben kann, löst sich zugleich auch diese Einheit von rechtlicher Personalität und politischer Subjektivität auf, die die moderne Idee der Rechte definiert hatte. The legal system assumes that human beings – and only human beings – are natural persons. That is erroneous, argues Malte-Christian Gruber, because legal subjectivity isn’t founded in humanity alone. It is moral autonomy that makes man into a “subject whose actions are capable of attribution” (Kant) and thus into a person. Personhood is not identified with being human as such, but by the attribution of actions and legal ownership. Besides human beings, such a functional concept of legal subjectivity can in principle also be applied to other autonomous agents as holder of rights and obligations, e.g. techno- logical artifacts and other non-human agents. Christoph Menke in turn points out that the invention of new rights was the actual law of motion of political emancipation in modern times. This began with the bourgeois revolutions and is still the general model with which politics and theory operate to claim new rights for non-human creatures and artifacts. Just as in the 19th and 20th centuries, the legal emancipation initially led beyond the limits of bourgeois subjectivity and in- vented social and cultural rights, so should we make a further consequent step and break with the dependence of juridical recognition on the category of human subjectivity. Also bio- and artifacts are to be reconstructed as independent legal entities. However, they lack something that was absolutely fundamental in the emancipatory struggles of the past: to be a subject of rights meant to have demanded rights, indeed, to have been a fighter for rights. One could not be a legal person and holder of rights without having been a political subject as fighter and thinker of rights. To suspend the dependence of legal personhood on human subjectivity so that there may be bio- and artifact-rights also means to dissolve the unity between legal personality and political subjectivity that once defined the modern idea of rights. ". (shrink)

The problem of the judge: judicial freedom of decision, its necessity and method, by F. Gény.--Judicial freedom of decision, its principles and objects, by E. Ehrlich.--Dialecticism and technicality; the need of sociological method, by J. G. Gmelin.--Equity and law, by G. Kiss.--The perils of emotionalism, by F. Berolzheimer.--Judicial interpretation of enacted law, by J. Kohler.--Courts and legislation, by R. Pound.--The operation of the judicial function in English law, by H. B. Gerland.--Codified law and case-law, by É. Lambert.--Methods of (...) class='Hi'>juridical thinking, by K. G. Wurzel.--The problem of the legislator: methods for scientific codification, by A. Alvarez.--The legislative technic of modern civil codes, by F. Gény.--Scientific method in legislative drafting, by E. Freund. (shrink)

Moral and legal philosophy are too entangled: moral philosophy is prone to model interpersonal moral relationships on a juridical image, and legal philosophy often proceeds as if the criminal law is an institutional reflection of juridically imagined interpersonal moral relationships. This article challenges this alignment and in so doing argues that the function of the criminal law lies not fundamentally in moral blame, but in regulation of harmful conduct. The upshot is that, in contrast to interpersonal relationships, the (...) criminal law cannot lose its standing to blame through institutional analogues of hypocrisy, complicity, and meddling. Rather, certain forms of structural and severe historical and contemporary injustice point to the question of the overall legitimacy of state authority. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Judgement and Sense in Modern French Philosophy: A New Reading of Six Thinkers by Henry Somers-HallClayton CrockettSOMERS-HALL, Henry. Judgement and Sense in Modern French Philosophy: A New Reading of Six Thinkers. Cambridge: Cambridge University Press, 2022. 264 pp. Cloth, $99.99Henry Somers-Hall's book examines how French philosophers in the twentieth century develop a logic of thinking based on sense that is both influenced by but also counters Kant's paradigm (...) of thinking, which is based on judgment. Beginning with Kant and German idealism, including the German responses to Kant in the work of Hölderlin, Fichte, Schelling, and Hegel, this book then carefully draws out the ways that Bergson, Sartre, Merleau-Ponty, Derrida, Foucault, and Deleuze all work against this understanding of thinking as judging by showing how our experience and our thought precede the categories of judgment.In chapter 1, Somers-Hall carefully sets out Kant's model of thinking and shows how the categories of philosophical thought are fundamentally based on how we judge our sensible intuitions. Judgment is at the center of Kant's thought, and this is apparent in the Critique of Pure Reason, including the famous Transcendental Deduction. Our knowledge has a legislative function in relation to objects, and conscious synthesis takes the form of a judgment. Despite their criticisms of Kant, later German idealists do not fundamentally depart from this modality of judgment that takes place at the center of their philosophy. Even though they put Kant's concepts in motion, it remains a structure of judgment that is understood as dynamic.Chapter 2 turns to Bergson, to show how his emphasis on immediate experience precedes categorical judgement. Bergson distinguishes between temporal and spatial multiplicities, and argues that temporal multiplicities that are expressed in terms of duration underlie the spatial ones that contribute to judgment. Duration is a deeper experience of time that is associated with life. Somers-Hall in chapter 3 examines Sartre's writings on imagination to show how consciousness is a pure relation and an affective mode of thinking that underlies the categorial mode of judgment.Most of these French philosophers develop their accounts of noncategorial sense in either explicit or implicit relation to Kant's philosophy. Merleau-Ponty is no exception, and in chapter 4 we see how it is the organization of perception that gives sense to the world, and this precedes and generates "our reflective categories of judgement." Judgment emerges out of perception, although Merleau-Ponty grounds perception in the embodied person. Derrida does not ground sense or [End Page 365] thinking in a body, but looks for noncategorial grounds that make possible "surface structures of thinking." In chapter 5, Somers-Hall elaborates Derrida's famous nonconcept of différance, which underlies and makes possible our concepts of voice and writing that appear to be oppositions but in fact are not because they rely on each other. Différance is not a concept; it is prior to conceptual determination, and it "operates as an 'origin' that has none of the traits of the structure of judgement."Foucault relies on Kant for his three epistemes of resemblance, representation, and the human being, modern man. Chapter 6 shows how Foucault is concerned in both his archaeology and his genealogy with opening up the structures of power that make any juridical ordering possible. Here a productive biopower works beneath what we recognize more explicitly as "juridico-discursive power" in both positive and negative ways that escape the grasp of a philosophy that is solely based on judgment.In chapter 7 Somers-Hall shows how Deleuze's concept of intensity underlies all forms of representational judgment. Intensity operates according to a process of differentiation that produces a logic of sense, which we miss when we grasp onto a "dogmatic image of thought" that "prevents a genuine encounter with the world [that] conditions us to understand it in terms of unified subjects who make sense of the world in terms of judgements." We think in response to a shock or an encounter with something in the world that forces us to think and to make sense. We form judgments retroactively, by reducing differences to... (shrink)

ResumenSociólogo alemán profundamente original y difícilmente clasificable, Niklas Luhmann (1927- 1998) ha elaborado una teoría ambiciosa y coherente en la que describe la sociedad moderna como un sistema. Constituido, no tanto por individuos sino por comunicación, se diferencia en subsistemas funcionales cerrados a través de códigos especializados: los sistemas político, económico, religioso, artístico o jurídico. Inspirándose en autores, teorías y disciplinas muy diferentes, Niklas Luhmman ha construido una de las obras más fecundas y singulares del siglo XX. De manera más (...) precisa, el objetivo de este artículo es analizar su teoría de los sistemas.Palabras claveLuhmann, teoría, sistema, subsistema, diferenciaciónAbstract The original and hardly classifiable German sociologist Niklas Luhmann (1927-1998) elaborated an ambitious and coherent theory which describes modern society as a system. Constituted, not so much of individuals but of communication, it is divided in closed functional subsystems through specializing codes: the political, economic, religious, artistic or juridical systems. Inspired by authors, theories and very different disciplines, Niklas Luhmman constructed one of the most fecund and singular works of the XX century. More precisely, the target of this article is to analyze his systems theory.KeywordsLuhmann, theory, system, subsystem, differentiation. (shrink)

The abolition of the political institutions of the Belgian provinces, as provided in the government declaration of 7 June 1977, puts a question into the usefulness of the provincial institutions.This contribution intends to throw more light on the policy at the provincial level - now and in the near past - by means of a brief functional and financial analysis. Beforehand, it has to be mentioned that juridical and institutional limitations do exercise a restraining influence on the functioning of (...) the provinces.A task-analysis shows that they are mainly concerned with «traditional» tasks, but they recently take into consideration «modern» tasks in the domain of social welfare.However, the means of the Belgian provinces are very limited ; as a result, the current expenditures of the provinces do not exceed 3 % of all public current expenditures. It shows the relative small importance of the provinces in the total government structure. (shrink)

Following Richard M. Hare1 I think that we use practical sentences as decision criteria. We understand their meaning if we know what decision to take according to them. But it is not clear, how exactly decision criteria are related to decisions and how they function as criteria. To fully understand this role, we need a formal semantics of practical sentences. For this I have to introduce a formal language and give an interpretation of it. This language has to be (...) constructed in such a way that a translation into ordinary language is always possible in principle. Thus, we make sure that our semantics and logic will have an impact on the solution of concrete practical problems. According to this program I will first introduce the formal language ‘LP1’. To give an interpretation of it I will then clarify what a decision is and show how practical sentences function as decision criteria. On this basis I give an interpretation of the primitive two-place operator ‘PT p,q’ and the one-place operator ‘VTp’. I further argue that we make meta-decisions concerning the application of first-order decision-criteria. This allows me to introduce a new concept of practical validity, which differs radically from the concept of truth. Using this concept, I then give an interpretation of the deontic operators ‘OTp’, ‘FTp’, ‘ATp’ and ‘ITp’. The concept of practical validity makes it also possible to introduce practical logical connectors and mixed logical connectors on the basis of practical or mixed value tables. These connectors are used – among others – in bridge-principles, which play an important role in ethical and juridical theories. Finally, I shortly explain the semantics of the main kinds of practical sentences, i.e. value judgments, imperatives, norms and intentions, and I argue that we need a deontic logic in order to use practical sentences in a correct way. (shrink)

This essay attempts to elaborate a political theory of capital’s violence. Recent analyses have adopted Karl Marx’s notion of the “primitive accumulation of capital” for investigating the forcible methods by which the conditions of capital accumulation are reproduced in the present. I argue that the current scholarship is limited by a certain functionalism in its theorization of ongoing primitive accumulation. The analytic function accorded to primitive accumulation, I contend, can be better performed by the concepts of “capital-positing violence” and (...) “capital-preserving violence.” In coining these new concepts, I first refine the conceptual core of primitive accumulation as the coercive capitalization of social relations of reproduction, which falls into sharpest relief in the violent history of colonial capitalism. I then elucidate this conceptual core with reference to Carl Schmitt’s account of European colonial expansion and Walter Benjamin’s reflections on law-making and law-preserving violence. The resultant concepts of capital-positing and capital-preserving violence, I conclude, can illuminate both the historical and the quotidian operations of the politico-juridical force that has been constitutive of capitalism down to our present moment. (shrink)

In this work I will evaluate the functions of rights within the moral discourse, and I will point out the benefits and the characteristics of a moral theory that takes rights seriously. In the first chapter I will sketch a definition of rights as a moral category that can be distinguished from categories such as the ones of juridical rights and natural rights. In the second chapter, I will propose a hohfeldian analysis of the normative syntax of rights, and (...) I will focus on the key problem of the relation between rights and duties. The issue I will deal with in the third chapter is the general function of specific rights. On this matter I will draw an hybrid solution between the orthodox proposals of the so-called interest and choice theories, and the more recent approaches provided by the past ten years literature. In the fourth and fifth chapters topics such as the conflict of rights, their violations and infringements will allow me to go deeper in the context and premises of the model of moral theory that I will take into account in the last section of this work. In the sixth chapter I will give an answer to the central questions of this research, and I will also provide a general model of abstract rights, by shading light on their original normative functions. I will use this model to investigate the possibility of justifying a moral theory on its ground, and I will compare this kind of theory with other theories structured upon different categories of normative objects – like duties and goals. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Kant’s Just War TheoryBrian OrendKant is often cited as one of the first truly international political philosophers. Unlike the vast majority of his predecessors, Kant views a purely domestic or national conception of justice as radically incomplete; we must, he insists, also turn our faculties of critical judgment towards the international plane. When he does so, what results is one of the most powerful and principled conceptions of international (...) justice ever constructed. Kant’s central concept, that it is a demand of our own practical reason that we forge a cosmopolitan federation of free republics, based on the rule of law, human rights, and cultural and commercial development, still resonates today as a plausible and hopeful prescription for humanity’s future.Much of Kant’s international theory has recently received searching analysis and evaluation. But the bulk of this consideration has focused on Kant’s descriptive, as opposed to prescriptive, claims. Lavish attention, for example, has been showered on his assertion that perpetual peace is inevitable—that our natural antagonism will irresistibly incline us, after many failures, to establish an international juridical condition. Comparatively little has been done on thoroughly evaluating Kant’s normative claims of international justice, particularly with regard to his ideal corpus of international law and his concrete recommendations for moving from a global state of nature to a cosmopolitan civil society.1In this paper, I would like to contribute to the latter task by focusing on the moral problem that war poses as, arguably, the most frequent and severe cause [End Page 323] of ruptures in the functioning of the international system.2 In particular, I would like to argue in favour of the controversial, and original, thesis that Kant has a just war theory.3 I would then like to develop that theory in some detail and to explain its strength and suggestiveness. The focus on war seems both helpful and timely. It is helpful in that it provides a specific, graphic example with which one can apprehend more clearly the abstract architecture of Kant’s international vision. It is timely in that, in the wake of the very recent conflicts in Bosnia and Rwanda, and in light of the subsequent formation of the International War Crimes Tribunals at The Hague, renewed attention has been paid to considering what, if anything, constitutes a just war and what is permitted, and what punishable, in terms of conduct in war. A rigorous consideration of what one of the true giants of moral philosophy thought about these issues can only serve to illuminate our understanding of these current events.1. THE TRADITIONAL READING OF KANT: NO JUST WARNearly every commentator on Kant’s international theory of justice who discusses the problem of war in any detail believes that Kant not only has no just war theory, but that he is, moreover, a vicious critic of the core propositions of classical just war theorists, such as Augustine, Aquinas, and Grotius. Howard Williams, for example, says that “Kant has no theory of just war … (j)ustice and war are in conflict with one another and it is our duty as human beings to try to overcome war.” Fernando Teson contends that “Kant dismisses the idea that there could be a just war” and Georg Geismann asserts that, for Kant, “there is no such thing as a just war.” Similarly, W. B. Gallie asserts that “Kant agreed … that nothing but confusion and harm resulted from regarding any wars as just … ” There is a bevy of quotes in the Kantian corpus to support this reading.4One prominent anti-just war quote occurs in Perpetual Peace, when Kant [End Page 324] reflects on the contributions of traditional just war theorists and arrives at the following judgment:It is therefore to be wondered at that the word right has not been completely banished from military politics as superfluous pedantry, and that no state has been bold enough to declare itself publicly in favour of doing so. For Hugo Grotius, Pufendorf, Vattel and the rest (sorry comforters as they are) are still dutifully quoted in justification of military aggression, although their philosophically or diplomatically formulated codes do not and... (shrink)

I argue that Giorgio Agamben employs two, contradictory theories of the state in his works. Earlier works, such as "The Coming Community" and "Means without End", suggest that the state today functions as an aspect of the society of the spectacle where spectacle is the logical extension of the commodity form under late capitalism. This part of Agamben's work attributes a determined character to the state and a determining power to the economic forces of capitalism that conditions particular forms of (...) the state. Later work, such as "Homo Sacer: Sovereign Power and Bare Life" and " State of Exception", are preoccupied with the logic of juridical sovereignty and the increased frequency of states of emergency. This part of Agamben's work attributes a determining strength to the state under current conditions. Although his earlier work provides a more coherent narrative of how it is possible to move from contemporary society to ideal community, it does not provide the theory of political action necessary to overcome the power of the state he describes when he theorizes the state in "Homo Sacer" and " State of Exception". None of the three possibilities of political action present in his later works provides passage beyond state sovereignty without violating his philosophical commitments. (shrink)

In this paper I offer an account of the normative dimension implicit in D. Bernoulli’s expected utility functions by means of an analysis of the juridical metaphors upon which the concept of mathematical expectation was moulded. Following a suggestion by the late E. Coumet, I show how this concept incorporated a certain standard of justice which was put in question by the St. Petersburg paradox. I contend that Bernoulli would have solved it by introducing an alternative normative criterion rather (...) than a positive model of decision making processes. (shrink)

How « the Father » became the cause of the pathologies affecting the family. When, in the 1960s, fathers lost their control over procreation and their control over women and children, some cracks started to appear in the edifice of patriarchal domination. There followed a reaction in which all the disorders today troubling the order of the family came to be traced back to this eclipse of the father figure. From this there emerged a veritable « State psychological apparatus » (...) whose aim was the sanctification of the traditional domestic functions : the father as the figure of authority, the mother as carer. Indifferent to its social and historical dimensions, Oedipus assumed the status of a, presumably universal, « symbolic order », dominated by the father and master. MT here calls into question the entire conceptual order of Lévi-Strauss and Lacan : the idea that the foundation of power and reason is naturally a masculine prerogative. Above all else, the article calls into question the interpretation put forward by Pierre Legendre, which assigns to a (patriarchal) juridical order the task of structuring the psyche. (shrink)