1. Derecho y cultura, derecho y otros órdenes deónticos, norma y orden jurídico.

t. 1. Psychologie et logique.--t. 2. Morale et métaphysique.

1. Teoría general del derecho.--2. Enciclopedia jurídica. Panorama de las ideas jurídicas contemporáneas.

This Is A New Release Of The Original 1899 Edition.

v. 1. Introduction ; Tribal law -- v. 2. The jurisprudence of the Greek city.

Seckendorff's »Teutsche Reden« of 1691 and the outline of his ideas on natural law published with them are a uniquely eloquent testimony of German Baroque culture. Seckendorff was the only 17th century aristocratic practitioner of courtly and political life to publish a number of his speeches in book form during his own lifetime and to supplement them with a theoretical superstructure substantiating his practical convictions. The text is centrally concerned with the connection between civilization and language culture and the dependence (...) of public speaking on the nature of the state. Seckendorff's unfinished outline of natural law betokens the critical engagement with the rise of secular natural law by a genuinely significant theoretician on the essential issues posed by government and administration. (shrink)

Certainly principles of criminal liability may be understood as rules or norms outlining orders or prohibitions and standing out among other norms with their weight, for legal culture, legal doctrine, etc. In such a classic approach they are norms defining basic rights and obligations in the applicable criminal law. However, is it the only possible and cognitively interesting meaning of the word “principle” in jurisprudence? From the semiotic point of view, they can occur in three forms: special-kind norms, teleological (...) directives, rules which constitute valid performance of conventional activities. In an extra-directival sense these principles may be understood as models-descriptions of shaping the system of criminal law. From a theoretical and practical point of view principles addressed to the legislator are extremely weighty—they can be called rules constructing the system of criminal liability. These all problems are discussed in the article. (shrink)

Students of jurisprudence often approach this complex subject with a sense of fear. This book provides a clear user friendly analysis of the major theories and controversies of jurisprudence. Whilst the subject is presented in sufficient detail for the student to gain an accurateunderstanding, they will not be left feeling confused and bewildered. The book starts by examining the nature of jurisprudence, then goes on to outline the content, implications and problems of the major legal theories. This (...) third edition has been expanded to include material on Islamicjurisprudence and postmodern legal theory. (shrink)

Drawing upon Martha Fineman’s vulnerability theory, the paper argues that the legal claims of homeless appellants before and during the COVID-19 pandemic illustrate our universal vulnerability which stems from the essential, life-sustaining activities flowing from the ontological status of the human body. By recognizing that housing availability has constitutional significance because it provides for life-sustaining activities such as sleeping, eating and lying down, I argue that the legal rationale reviewed in the paper underscores the empirical, ontological reality of the body (...) as the basis for a jurisprudence of universal vulnerability. By tracing the constitutional basis of this jurisprudence from Right to Travel to Eighth Amendment grounds during COVID-19, the paper outlines a distinct legal paradigm for understanding vulnerability in its universal, constant and essential form – one of the central premises of vulnerability theory. (shrink)

The question examined in this study is not merely how a Nietzschean critique of law would look had Nietzsche ever applied his genealogical method to the question of law, but also what positive function Nietzschean philosophy may ascribe to law, and how law must then be transformed. The methodological parable imagines a “post-genealogy” or “pot-ressentiment” phase of the human condition, akin to the Marxist “post-revolutionary” phase: how would law look for the person of power - overman or otherwise - who (...) needs to live among others? How is normativity possible - what are its forms and functions - in a social world that has undergone a reevaluation of all values? The study traces three possible models for conceptualizing law in Nietzschean terms, each requiring a radical shift from traditional (in different contexts: liberal, Christian, bourgeois) conceptions. The first one is play: law as affirming and embracing the essence of the Dionysian, which is perpetual becoming. Play requires us to let go of law's role as the curtailer of arbitrariness. An integral part of the Nietzschean program, it requires a radical reevaluation: not just law's content is overcome, nor merely its bourgeois forms (in Pashukanis' critical terms), but its “internal” or “inherent” values of certitude and stability are overcome as well. The model I offer for play is not Zarathustra's dicethrow but Borges' The Lottery in Babylon. The second model is that of resistance, framed by Nietzsche's analysis of power and Deleuze's distinction between active and reactive forces. The insight here is that power requires resistance, and it is law's primary function to empower the other in order to invest value in meeting and confronting her; thus the monism of the will to power not only does not do away with normativity in the public sphere but actually requires it - but for goals opposite to those of liberalism. Resistance is linked to the third model, fashioned after Nietzsche's model of education: here, law performs not as a socializing agent but rather as a “liberator” of authenticity. Its function is analogous to that of a mentor whose role is to ultimately encourage the pupil into coming into her own will, shedding ressentiment and bad conscience in an active, i.e. non-conscious way; in its relation to consciousness it is the opposite of psychoanalysis. A fourth consideration is then offered, the role of normativity in self-overcoming, or self-legislating; namely, how does normativity figure in the will to power's most significant challenge. While all these models work from an interpretation of the will to power as becoming, the last two are especially dependent on the active-reactive distinction. The cornerstone is not to mix up power with representations of power; to realize that the case is not the will that desires power (as an object of desire, this would necessarily involve a representation of power) but power that wills becoming. In dealing with this metaphysical question I expound on a similar crucial interpretation, originally offered by Deleuze; however, I break off from Deleuze's claim that the will to power has nothing to do with any notion of struggle. If this discussion of the will to power is missed , or if it is wrong, the main argument of this article can not hold. Finally, I use this interpretation of the will to power to solve Kafka's riddle in The Trial: a necessary move once one realizes that, in the ethical history of western culture, Kafka's parable of the seeker of the law before its closed gates continues a sequence that began with Plato's fable of the cave and continued with Zarathustra's cave parable. I add three points that may be termed methodological or contextual. The first is positioning Nietzsche's limited discussion of law and politics as a derivative of his metaphysics of the will and treatment of moral psychology, not as an independent topic to be searched and indexed in some textual corpus. The second is to understand the question of normativity in its particularly Nietzschean sense, i.e. “what is X to me/to the overman?”, and not in the Kantian sense of uncovering the conditions that entail any synthetic, a-priori sentence (such as normative ones). The last comment places the Nietzschean project in a larger pattern that defined radical thought in the late nineteenth and early twentieth centuries, and whose other cases are Marx and Freud: a new metaphysics (will to power/materialism/id) that uncovers a state of bondage, psychological and material, in which law plays a pivotal role in its function of reinforcer and supplier of a legitimizing language (respectively, of ressentiment, of the relations of production, of Oedipus and the bourgeois family); and finally radical, yet partial ways of overcoming bondage that are not mutually translatable - genealogy, revolution, psychoanalysis. (shrink)

Could a computer be programmed to make moral judgments about cases of intentional harm and unreasonable risk that match those judgments people already make intuitively? If the human moral sense is an unconscious computational mechanism of some sort, as many cognitive scientists have suggested, then the answer should be yes. So too if the search for reflective equilibrium is a sound enterprise, since achieving this state of affairs requires demarcating a set of considered judgments, stating them as explanandum sentences, and (...) formulating a set of algorithms from which they can be derived. The same is true for theories that emphasize the role of emotions or heuristics in moral cognition, since they ultimately depend on intuitive appraisals of the stimulus that accomplish essentially the same tasks. Drawing on deontic logic, action theory, moral philosophy, and the common law of tort, particularly Terry's five-variable calculus of risk, I outline a formal model of moral grammar and intuitive jurisprudence along the foregoing lines, which defines the abstract properties of the relevant mapping and demonstrates their descriptive adequacy with respect to a range of common moral intuitions, which experimental studies have suggested may be universal or nearly so. Framing effects, protected values, and implications for the neuroscience of moral intuition are also discussed. (shrink)