This article delineates some of the main issues that are debated by philosophers of law. It explores the connections between legalphilosophy and other areas of philosophy, while also seeking to specify the distinctiveness of many of the concerns that have preoccupied philosophers of law. It illustrates its abstract points with examples focused on the separability of law and morality, the nature of the rule of law, the nature of rights, justifications for the imposition of punishment, and (...) the identification of basic legal entitlements. (shrink)
The problem of the legal person is a central issue in legalphilosophy and the theory of law. In this article I examine the semantic meaning of the concept of the person in Russian philosophy at the turn of the twentieth century, considered to be the "Golden Age" of Russian legal thought. This provides an overview of the conception of the personality in the context of different legal approaches (theory of natural law, legal (...) positivism, the psychological legal doctrine, and the sociological school of law). I indicate a polemic among the theories of the person and attempts to create an integral concept of the legal subject. In addition I present an analysis of the relation between the concepts of the legal subject and the moral person, which personify fundamental features of law and morality. In order to demarcate the notions of individual and the legal subject, I focus on doctrines of the artificial person or the juridical person. (shrink)
In this article the paradoxical role of legal science in legal practice is discussed. On the one hand, legal scientists do not agree on the criterions of the scientific character of legal science. On the other hand, even in the legal cases that are especially complicated it is possible to arrive at theoretically unquestionable decisions. The author of the article concludes that legal practice is based on fundamental theoretical insights; however, in legal practice (...) these insights are used more intuitively than reflectively. Therefore, the aim of the article is to rationally reconstruct these theoretical insights with reference to the ideas of modern schools of legalphilosophy. For this purpose the ideas of the theory of natural law are discussed. It is concluded that in legal practice two provisions of natural law are applied: legal decisions ought to be reasonable and must include existential ends (basic values). The evolution of the legal positivism is discussed in the article and it is concluded that legal positivism offers the criterions of the scientific character of legal science by framing the procedural rules of the democratic process of lawmaking. These rules anticipate such conditions: consensus concerning decision making; equal participation of all members of legal discourse confirming normative decisions; the acceptability of consequences after the realisation of normative decisions; the possibility to reaffirm normative decisions, if necessary. The ideas of virtue jurisprudence are discussed and it is claimed that virtue jurisprudence as a criterion of the scientific character of law proposes such theoretical position: the decisions concerning human rights must supply the value system (hierarchy) and the virtues which are formed and justified in the long legal tradition. The article represents the use of these criterions of the scientific character of legal science by Jurgen Habermas to debate about legal prohibition of the improvement of the human genome by using modern technologies of genome engineering in the Convention of Human Rights and Biomedicine (Oviedo, 1997). (shrink)
This article, written for the forthcoming Oxford Handbook of American Philosophy, offers an overview of the most important American contributions to legalphilosophy - American legal realism, law and economics, various critical schools of jurisprudence, Lon Fuller, and Ronald Dworkin - while speculating on what might be distinctive of American legalphilosophy. One obvious recurring theme is a focus on practical application in general, and adjudication (especially constitutional adjudication) in particular.
This short article was written for a collection on American legalphilosophy today. It gives a brief overview of analytical legalphilosophy, and speculates on why this theoretical approach has been consistently misunderstood in the United States, from the time of the legal realists until today.
Many of the current debates in jurisprudence focus on articulating the boundaries of law. In this essay I challenge this approach on two separate grounds. I first argue that if such debates are to be about law, their purported subject, they ought to pay closer attention to the practice. When such attention is taken it turns out that most of the debates on the boundaries of law are probably indeterminate. I show this in particular with regard to the debate between (...) inclusive and exclusive positivists: I present several ways of understanding what this debate is about and argue that none of them is defensible. My second argument focuses more on the purpose of jurisprudential inquiry. I argue there that even if some jurisprudential debates have determinate answers, it does not follow that they deserve our attention, because not all true facts are worth knowing. After discussing and rejecting the claim that jurisprudence could be justified as knowledge for its own sake, I propose one possible justification for engaging in legalphilosophy and outline its implications for the kind of issues that should be pursued. (shrink)
The “naturalistic turn” that has swept so many areas of philosophy over the past three decades has also had an impact in the last decade in legalphilosophy. Methodological naturalists (M-naturalists) view philosophy as continuous with empirical inquiry in the sciences. Some M-naturalists want to replace conceptual and justificatory theories with empirical and descriptive theories; they take their inspiration from more-or-less Quinean arguments against conceptual analysis and foundationalist programs. Other M-naturalists retain the normative and regulative ambitions (...) of traditional philosophy, but emphasize that it is an empirical question what normative advice is actually useable and effective for creatures like us. Some M-naturalists are also.. (shrink)
Unlike other works in philosophy of law, which focus on the nature of law in the abstract, this comprehensive anthology presents law as a "process," part and parcel of a system of government and defined constitutional procedures. Using the U.S. legal system as a model, it establishes the basis of law in political theory, then presents substantive issues in private and public law, illustrated throughout with important political documents and court cases and stimulating readings in history, law, and (...)philosophy. The editor's detailed critical commentary, notes, and study questions make these materials accessible and useful for a wide range of readers seeking a deeper understanding of private and public law and the nature of the political process. (shrink)
I argue in this article (i) that Karl Olivecrona's legalphilosophy, especially the critique of the view that law has binding force, the analysis of the concept and function of a legal rule, and the idea that law is a matter of organized force, is a significant contribution to twentieth century legalphilosophy. I also argue (ii) that Olivecrona fails to substantiate some of his most important empirical claims, and (iii) that the distinction espoused by (...) Olivecrona between the truth and the correctness of legal statements is problematic but not needed in Olivecrona's legalphilosophy. (shrink)
The foundations of law have been the object ofintense philosophical scrutiny since antiquity.Most importantly, it has been asked whetherthere are really any foundations other thansheer force to be found once more comfortingillusions are abandoned. This paperinvestigates four influential theorists ofradical legalphilosophy and postmodern thought(Benjamin, Schmitt, Luhmann, Derrida) who dealwith this problem in comparable ways despitetheir different theoretical outlooks. Themerits of these theories having been assessed,mentalism in ethics and law is introduced as apossible alternative to both the (...) widespreadfoundationalism of the past and theanti-foundationalism of the postmodern present. (shrink)
This is a collection of essays on themes of legalphilosophy which have all been generated or affected by Hart's work. The topics covered include legal theory, responsibility, and enforcement of morals, with contributions from Ronald Dworkin, Rolf Sartorius, Neil MacCormach, David Lyons, Kent Greenawalt, Michael Moore, Joseph Raz, and C.L. Ten, among others.
The volume brings together a collection of original papers on some of the main tenets of Joseph Raz's legal and political philosophy: Legal positivism and the nature of law, practical reason, authority, the value of equality, incommensurability, harm, group rights, and multiculturalism.
There is no question Arthur Ripstein’s Force and Freedom is an engaging and powerful book which will inform legalphilosophy, particularly Kantian theories, for years to come. The text explores with care Kant’s legal and political philosophy, distinguishing it from his better known moral theory. Nor is Ripstein’s book simply a recounting of Kant’s legal and political theory. Ripstein develops Kant’s views in his own unique vision illustrating fresh ways of viewing the entire Kantian project. (...) But the same strength and coherence which ties the book to Kant’s important values of independence blinds the work to our shared moral ties grounded in other political values. Ripstein’s thoughts on punishment are novel in that he embeds criminal law, both in its retributivist and consequentialist facets, into Kant’s overarching political philosophy to show how criminal law can be seen as one aspect of the supremacy of public law. But a criminal law solely focused on the preservation of freedom takes little notice of the ways criminal law need expand its view to account for how a polity can restore the victim of a crime back to civic equality, reincorporate offenders after they have been punished and cannot leave past offenders isolated and likely to reoffend, resulting in the rotating door prison system and communities of innocents who remain preyed upon by career criminals. Lastly, a political theory that does not prize our civic bonds will ignore the startling balkanization of our criminal punishment practices, where policing, arresting and imprisonment become tools of racial and social oppression. In illustrating the benefits in viewing criminal law as a coherent part of Kant’s political theory of freedom, Ripstein also highlights what is absent. It then becomes clear that though Kant presents one important facet of punishment, only a republican political theory can meet the most pressing moral demands of punishment by reminding us that criminal law must be used to preserve and strengthen civic society. (shrink)
On Finnish legal theory in the 20th century.--On the significance of theoretical studies in legal research.--On so-called hermeneutic trend in Finnish legal theory.--Can a sentence concerning the content of a legal rule be valid?--External and changing law--Some thoughts on the community of heirs as a juridical person.
Introduction: From legal realism to naturalized jurisprudence -- A note on legal indeterminacy -- Part I. American legal realism and its critics -- Rethinking legal realism: toward a naturalized jurisprudence (1997) -- Legal realism and legal positivism reconsidered (2001) -- Is there an "American" jurisprudence? (1997) -- Postscript to Part I: Interpreting legal realism -- Part II. Ways of naturalizing jurisprudence -- Legal realism, hard positivism, and the limits of conceptual analysis (1998, (...) 2001) -- Why Quine is not a postmodernist (1997) -- Beyond the Hart/Dworkin debate: the methodology problem in jurisprudence (2003) -- Part III. Naturalism, morality, and objectivity -- Moral facts and best explanations (2001) -- Objectivity, morality, and adjudication (2001) -- Law and objectivity (2002). (shrink)
Interest in interpretation has emerged in recent years as one of the main intellectual paradigms of legal scholarship. This collection of new essays in law and interpretation provides the reader with an overview of this important topic, written by some of the most distinguished scholars in the field. The book begins with interpretation as a general method of legal theorizing, and thus provides critical assessment of the recent "interpretative turn" in jurisprudence. Further chapters include essays on the nature (...) of interpretation, its objectivity, the possible determinacy of legal standards, and their nature. Concluding with a series of articles on the role of legislative intent in the interpretation of statutes, this work offers new and refreshing insights into this old controversy. (shrink)
Human life, society and law: fundamentals of the philosophy of the law, by Luis Recaséns Siches.- Phenomenology of the decision, by Carlos Cossio.- The eidetics and aporetics of the law, by Juan Llambías de Azevedo.- The philosophical-juridical problem of the validity of law, by Eduardo García Máynez.- Liberty as right and as power, by Eduardo García Máynez.
Kant’s example of lying to the murderer at the door has been a cherished source of scorn for thinkers with little sympathy for Kant’s philosophy and a source of deep puzzlement for those more favorably inclined. The problem is that Kant seems to say that it’s always wrong to lie – even if necessary to prevent a murderer from reaching his victim – and that if one does lie, one becomes partially responsible for the killing of the victim. If (...) this is correct, then Kant’s account seems not only to require us to respect the murderer more than the victim, but also that we somehow can become responsible for the consequences that ultimately result from someone else’s wrongdoing. After World War II our spontaneous negative reaction to this apparently absurd line of argument is brought out even more starkly by making the murderer at the door a Nazi officer looking for Jews hidden in people’s homes. This paper argues that Kant’s discussion of lying to the murderer at the door has been seriously misinterpreted. The suggested root of the problem is that the Doctrine of Right has been given insufficient attention in Kant interpretation. It is in this work we find many of the arguments needed to understand Kant’s analysis of lying to the murderer in “On a Supposed Right to Lie from Philanthropy”. When we interpret this essay in light of Kant’s discussion in the Doctrine of Right, we can make sense of why lying to the murderer isn’t to wrong the murderer, why we nevertheless become responsible for the consequences of the lie and why choosing to lie to do wrong ‘in the highest degree’. Finally, the Doctrine of Right account of rightful relations makes it possible for us to analyze the example when we make the murderer at the door a Nazi officer. (shrink)
This article explores the traditional basis of modern human rights doctrines and exposes some of the systemic shortcomings. It then posits that a number of these problems are advanced via integrating some developments in the philosophy of science and substantive scientific research into legalphilosophy. This article argues that supervening holism grounded in quantum mechanics provides an alternative basis to human rights by positing an ontological construct that is congruous with many of the wisdom traditions practiced around (...) the world. Such a foundation exposes a rational imperative for universal human rights and hence appeals to legal pragmatists. (shrink)
This superb, exemplary account of Immanuel Kant’s legal and political philosophy is essential reading not only for Kant scholars, but also for political philosophers and philosophers of law. Lucidly reasoned and written with crystalline clarity, the book is both accessible to non-specialists and a pleasure to read. Ripstein reveals the coherent, systematic structure of thought in Kant’s obscurely written Doctrine of Right, and goes beyond illumination to defense and development of Kant’s conception of equal freedom. In the course (...) of doing all of this, he not only presents Kant in historical context, but also brings to light important differences between Kant’s views and those of other political philosophers and .. (shrink)
It is a fact that the reception of European codes into Turkish law was done bravely and without looking back. How and to what extent the European codes that were adopted in this way have affected social life is one of the difficult problems of sociology of law and philosophy of law. The above-mentioned historical perspective brings with it the following consequences: • The necessity of a uniform law; • The necessity to create a legal system that will (...) deal satisfactorily with new events and developments; and • The necessity of a uniform law uniting me national body as the key to meeting the obligation of absolute independence in order to get rid of external pressures. The Turkish Revolution started with these targets and has been progressing in the same direction without any changes in its substantial content. (shrink)
The state, by V.I. Lenin.--The revolutionary part played by law and the state; a general doctrine of law, by P.I. Stuchka.--The theory of Petrazhitskii: Marxism and social ideology. Law, our law, foreign law, general law, by M.A. Reisner.--The general theory of law and Marxism, by E.B. Pashukanis.--The right deviation in the Communist Party of Bolsheviks. Political report of the Central (Party) Committee to the XVI Congress, 1930, by J.V. Stalin.-- The Soviet state and the revolution in law, by E.B. Pashukanis.--Socialism (...) and law, by P. Yudin.--The fundamental tasks of the science of Soviet socialist law, by A.Y. Vyshinsky.--Report to the XVIII Party Congress, by J.V. Stalin.--The theory of the state and law, by S.A. Golunskii and M.S. Strogovich.--The Soviet state in the war for the fatherland, by A.Y. Vyshinsky.--The relationship between state and law, by I.P. Trainin. (shrink)