Online research in philosophy

Legitimate authority -- The claims of law -- Legal positivism and the sources of law -- Legal reasons, sources, and gaps -- The identity of legal systems -- The institutional nature of law -- Kelsen's theory of the basic norm -- Legal validity -- The functions of law -- Law and value in adjudication -- The rule of law and its virtue -- The obligation to obey the law -- Respect for law -- A right to dissent? : civil disobedience -- A right to dissent? : conscientious objection --The purity of the pure theory -- The argument from justice, or how not to reply to legal positivism.

It has become increasingly common for legal positivist theorists to claim that the primary objective of legal theory in general, and legal positivism in particular, is "explaining normativity." The phrase "explaining normativity" can be understood either ambitiously or more modestly. The more modest meaning is an analytical exploration of what is meant by legal or moral obligation, or by the authority claims of legal officials. When the term is understood ambitiously - as meaning an explanation of how conventional and other empirical facts can give rise to moral obligations - as many legal positivist theorists seem to be using the phrase, the project is contrary to basic tenets of legal positivism, and has regularly led theorists to propose doubtful theories that ignore "is"/"ought" divisions.

Clearly procedure plays some important role in accounts of legal authority, a concept that depends on the possibility of obedience to substantively disagreeable legal commands. But is the role of procedure intrinsic - commanding obedience without regard to the outcomes it produces - or instrumental? On an epistemic-guidance account of legal authority (like Joseph Raz's service conception), the instrumental nature of procedure is obvious: Legal procedures confer authority by generating better outcomes than legal subjects could achieve on their own. On a broadly Hobbesian dispute-resolving account, however, procedure appears to have entirely intrinsic value, as a focus on outcomes seemingly would recapitulate whatever dispute law is supposed to resolve. This paper contends that, despite this impression, procedure can in fact be instrumental on a dispute-resolving account of legal authority, albeit on a systemic rather than an ad hoc basis - a possibility with potentially important consequences for the legitimacy of legal procedures.

The aim of this paper is to develop an analytical framework for legal integration (integration through law / integration of law) in the European Union from the perspective of legal culture. We advance a relational conception of legal culture that builds on the tension between, and the reciprocal adaptation of, legal rules and social norms (process) in a given institutional order (unit). Drawing on Paul Bohannan's notion of double institutionalisation of law, we first analyse the relationship between legal rules and social norms in the state legal order. Secondly, we submit that due to the enhanced level of integration of the European polity as compared to traditional international law-type entities it is possible to cognise a European Union legal culture which is simultaneously distinct from and mutually constitutive of the legal cultures of its Member States. We conclude that from the perspective of legal culture, the challenges of European integration are not adequately described either in terms of a 'conflict of laws' or in terms of a 'clash of cultures'. Rather, legal integration in the European Union should be understood as building on parallel but interlocking processes of double institutionalisation of law at the European and the national levels.

For several decades, international law has recognized certain norms such as the prohibitions against genocide, slavery, and military aggression as "jus cogens"- peremptory law which supersedes conflicting international treaties and customs. Despite widespread acceptance of the jus cogens concept, legal theorists continue to debate whether peremptory norms derive their legal authority from state consent, natural law, or the demands of international public order. Anxiety over peremptory norms' legal basis has frustrated efforts to clarify the scope and content of jus cogens, as well as placing peremptory norms on a collision course with inherited notions of state sovereignty. Drawing on Immanuel Kant's conception of fiduciary relations, this Article develops a new theory of jus cogens based on the idea that states are fiduciaries of their people. According to the fiduciary theory, peremptory norms do not stand in opposition to state sovereignty; rather, they are constitutive of state sovereign authority because all states owe their subjects a fiduciary obligation to comply with such norms. The fiduciary model of the state resolves the longstanding tension in international legal theory between peremptory norms and state sovereignty and points to discrete formal and substantive criteria for identifying peremptory norms.

This paper employs Michael Walzer's concept of "Supreme Emergency" to address the permissibility of torture under conditions of necessity. It proposes moving beyond both utilitarian and deontological approaches to legal authority in order to understood necessity as a moral category. A full account of right action under conditions of necessity therefore demands taking account of the distinct yet cooperative function provided by legal and moral norms. A political official might therefore possess moral but not legal warrant to act in contravention of binding legal norms. Preserving the validity of law is essential to the economy of social reconstitution in the aftermath of political tragedy.

The author investigates how the conception of legal validity as a specific mode of existence, adopted by Kelsen in Allgemeine Theorie der Normen (General Theory of Norms), can be reconciled with a conception of the legal system in which conflicts of legal norms remain of logical concern. To this end he makes use of Ludwig Wittgenstein's picture theory of the proposition as set out in the Tractatus Logico-Philosophicus. The conclusion is that in order to reconcile the two conceptions, the legal system itself must be conceived of as consisting of three sub-systems, namely, (i) a sub-system of perceptible legal judgments, (ii) a sub-system of valid legal conditions, and (iii) a sub-system of observable social practices.

The author investigates how the conception of legal validity as a specific mode of existence, adopted by Kelsen in Allgemeine Theorie der Normen (General Theory of Norms), can be reconciled with a conception of the legal system in which conflicts of legal norms remain of logical concern. To this end he makes use of Ludwig Wittgenstein's picture theory of the proposition as set out in the Tractatus Logico-Philosophicus. The conclusion is that in order to reconcile the two conceptions, the legal system itself must be conceived of as consisting of three sub-systems, namely, (i) a sub-system of perceptible legal judgments, (ii) a sub-system of valid legal conditions, and (iii) a sub-system of observable social practices.

In Kelsen's formalist and reductionist theory of law, the concepts of `authority' and `competence' may be explained exclusively in terms of those norms on which the validity of other legal norms or of legal acts is dependent. Kelsen describes the nature of these norms in different ways; at least three different conceptions can be distinguished. A rational reconstruction of the most plausible of these conceptions will understand sentences expressing such `norms of competence' either to state truth conditions for normative sentences of a lower level or to state criteria for an act to be a legal act. In both functions, norms of competence regulate the creation of normative facts.

`Authority', `competence' and other related concepts are determined on the basis of the concept of law as a dynamic order of norms. The norms which regulate the processes of norm creation establish empowerments (Ermächtigungen). The material domain of validity of the empowering norm is called `competence'. The concept of `person' in relation to empowering norms yields the concepts of `organ' and `authority'. The spatial domain of the validity of these norms is the spatial or territorial jurisdiction. This paper analyses the basic norm and its legal functions; it considers the irregularity of legal acts and norms, as well as the legal consequences thereof, namely nullity and annulment. Additionally, the Kelsenian `Tacit Alternative Clause' is criticized and a possible solution to the problem of irregular norms is offered through new definitions of the existence, validity and legitimacy of norms.