The Nature of Law and Legal Systems

In this article the author reviews the recent exchange in this Journal between David Dyzenhaus and Matthew Kramer on the merits of legal positivism. He then offers his own modest proposal regarding future debates on that topic.

Legal translation is viewed as “a category in its own right” (Weston in An English reader’s guide to the French legal system. Berg, Oxford, (1991, p. 2). It is a kind of translation of the language used for specific purposes (Zhao in J Transl Stud 4:28, 2000). Legal translation requires accuracy in relaying the substance of the message, while respecting the form thereof as well as the genius of the target language (Zhao in J Transl Stud 4:19, 2000; Sarcevic in (...) New approach to legal translation. Kluwer Law International, Hague, 1997, p. 52). As generally accepted worldwide, precision is deemed of paramount importance in legal translation. With this in mind, the present paper deals chiefly with the concept of how legal translation can correctly be tested in order to ensure precision and validity for application and implementation. The paper will argue that the main goal of legal translation and the major criterion against which the precision of legal translation should be tested is to reproduce the same legal effect in the target text as that conveyed in the source text regardless of the method(s) used in the translation process. (shrink)

The Aristotelian notions of "natural justice" and epieikeia are neglected, and even incomprehensible in much of contemporary jurisprudence and legal practice. This neglect, and any associated imbalance between legal justice and natural justice are, it is argued, at the root of many legal injustices. Concrete paradigmatic examples of legal injustices are the starting point of the analysis and used to give meaningful content to the notion of legal injustices. Ronald Dworkin's attempted justification of contemporary democratic legal systems as "interpretations" grounded (...) in his "community of principle" is criticized as an exemplary jurisprudential theory because his theory is viewed as describing, as well as any other theory, contemporary notions of law. It is argued that Dworkin's egalitarian reduction of justice into a principle of legal interpretation, together with his "community of principle" as personifying the interpretations of legal elites, are distinct from, and incompatible with, the related Aristotelian notions of friendship and natural justice. The Aristotelian notions of natural justice and epieikeia are described and used to diagnose the legal injustices identified earlier in the study, and to reveal the inadequacies of Dworkin's theory for making such a diagnosis. The Aristotelian notion of epieikeia is contrasted with legal notions of equity . Natural justice is distinguished from natural law notions and Kantian moral laws in terms of its subject matter, which involves particulars rather than universalizable rules and principles. Accordingly, it is argued that natural justice is perceived and grasped rather than deduced. Kant's notion of a "kingdom of ends" is briefly considered as a rival framework to the Aristotelian notion of natural justice, but rejected because of its incompatibility with the flexibility of epieikeia. Various reforms of the political and legal systems are proposed. (shrink)

The influx of modernity is approached as a guaranteed right in the economic process. The period is catalogued as a proponent of rationality in Weberian-Habermasian sense, with an adjustment as to ends. Rights adopt four characteristics in the methodological argument of modernity: a) it is calc..

En este trabajo intento mostrar, contra la tesis de D. James, que existe una relación de continuidad entre la teoría del derecho internacional del Fundamento del derecho natural y de El Estado comercial cerrado de Johann G. Fichte, basándome en dos razones. En primer lugar, en ambos textos la propiedad de los ciudadanos puede ser garantizada sólo si el Estado es soberano en relación con los demás para planificar su propia política económica. En segundo lugar, si bien en El Estado (...) comercial cerrado se restringen las relaciones comerciales entre los ciudadanos, también quedan abiertos otros tipos de relación entre los ciudadanos de diferentes Estados. (A). (shrink)

By the desiyn with the categories of the Doymatics and the “Theory of Law” of an interfase for legal information retrieval, it will verify the consistence of the theories of legal justification suggested by the Jurisprudence. The verification will be in the congruence of the use of automated legal documentation by judges and lawyers in continental countries in their practice.

El artículo debate un ensayo recientemente publicado sobre la doctrina liberal de la libertad de prensa y sus retos actuales. En primer lugar, presenta brevemente el recorrido histórico de la doctrina liberal que hace el ensayo, así como los principales retos a los que se enfrenta hoy esta doctrina por los cambios en los medios. Y luego pasa a discutir con más detalle qué instancia normativa debería contribuir más a mejorar los medios. Mientras que el ensayo insiste en el papel (...) del derecho por su mayor efectividad, el artículo defiende un protagonismo específico de la ética argumentando que: la disonancia entre doctrina y realidad no es exclusiva de ahora; la autorregulación tiene una función propia; el derecho también tiene limitaciones a la hora de mejorar la comunicación social y puede conllevar riesgos; y el déficit propio de nuestro país es más de cultura democrática y cívica que de leyes. (shrink)

I will suggest, in this article, a possible explanation of the fact that legal language appears incoherent to the general public. I will present one legal text (an indictment), explaining why it appears incoherent to legal laypersons. I will argue that the traits making this particular text appear incoherent are, first, that a specialized legal meaning is conveyed implicitly and, second, that there are no key-words that could direct laypersons to the knowledge making this meaning obvious to legalists. I will (...) conclude that any legal text having these traits is likely to appear incoherent to the general public and suggest that the traits making my example appear incoherent might be rather common among the various texts of the various legal systems. On this suggestion there is no need to assume any causal relation between lawyers’ social interests and the apparent incoherence of legal language as it entails that this incoherence is inevitable. (I will argue that it is a result of the facts that legal language is ordinary language used, in the ordinary way, in the special context of the legal discourse.). (shrink)

This article describes law's encounter with deconstruction, and how it changed deconstruction. In the hands of lawyers, deconstruction became a set of rhetorical strategies for critiquing legal distinctions and showing their ideological character. Legal scholars used deconstructive arguments to offer normative prescriptions in ways quite different from literary critics or philosophers. Although in theory all texts and distinctions are deconstructable, legal scholars assumed that some interpretations were better than others. Legal deconstruction thus became a set of repeatable rhetorical practices used (...) for pragmatic purposes; and it revealed that these rhetorical and pragmatic features were already present in literary and philosophical deconstruction. Deconstruction's encounter with law also overturned several popular assumptions about deconstruction. First, legal deconstruction does not assert that legal texts have no meaning or that their meanings are indecipherable. Rather, it argues that texts are overflowing with meanings that point in different directions and emerge over time. Second, one deconstructs conceptual oppositions not to show that legal concepts have no boundaries, but that their boundaries are fluid and appear differently as the conceptual opposition is placed into new interpretive contexts. Legal deconstruction asserts that legal distinctions are nested oppositions - conceptual oppositions whose terms bear a relation of mutual dependence and differentiation; this complicated relationship is revealed as interpretive contexts change. Ideological drift, in which concepts change their political valence as they are repeatedly invoked at different points in history, is a special case of this phenomenon. Third, instead of asserting that legal doctrine is radically indeterminate, legal deconstruction suggests that social construction places ideological constraints on legal decisionmaking and helps produce the sense that some arguments are better than others. Finally, far from denying the existence of fundamental human values, legal deconstruction presupposes a transcendent value of justice which law attempts to express but always fails fully to articulate. (shrink)

Until the second half of the 19th century the natural numbers were regarded as given and not further analysable. The concept of a class as defined by mathematicians of the time, Seeming more fundamental, Was then used to define the natural numbers. Their definitions of a class are unsuitable because of paradoxes and other difficulties. In this paper a new definition of a class is stated, And from this the natural numbers are defined.

This paper challenges the assumption that legal sociology should apply itself to the external or factual properties of the law and leave the internal and normative aspects of legal phenomena to doctrinal scholars and moral philosophers. It argues that legal sociology explores the normative contexts of the law and other social systems, but being restricted by its “scientific” mode of expression it describes and analyses them in sociological rather than moral terms. Legal sociology is, and should be seen as, a (...) different language game than moral and legal philosophy, and its treatment of normativity should be understood on its own terms. The assertion that legal sociology should limit its scope of analysis to the study of the empirical aspects of law and leave the study of law’s normative dimensions to other branches of legal studies is itself a normative supposition and part of the competing discourses which constitute the field of legal research. These discourses aim at demarcating the disciplinary boundaries between various epistemic approaches to the study of law and creating disciplinary identities rather than exploring the methodological scope of socio-legal research. Part One starts by briefly considering the relationship between norms and normativity, arguing that normativity is generated by system as well as lifeworld and is not necessarily reducible to the effects or functions of individual norms. Part Two develops this point by making a case for justice as law’s source of normativity par excellence. It maintains that although the relationship between law and justice is often discussed in terms of norms, the normativity that justice exercises on law is dependent on the broader context of the legal system, which is defined differently by different theories. Part Three draws attention to the methodological constraints of socio-legal research, according to which social scientific studies of law should apply themselves to the external empirical or factual properties of the relationship between law and society and leave the internal and normative matters to doctrinal scholars and moral philosophers, respectively. The paper concludes by arguing that the sphere of socio-legal research is not, and cannot be, limited to an examination of the factual characteristics of law. Moreover, the assertion that legal sociology should apply itself to the study of the empirical aspects of law and leave the normative dimensions to other legal scholars is a normative stance and part of on-going attempts at demarcating the disciplinary boundaries of various branches of legal studies. (shrink)

The author attempted to present the development of legal theories through early & medieval philosophical history.