The Nature of Law and Legal Systems

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.

Chair: Carl Wellman. There will now be a discussion between the two speakers in which they will take turns, posing questions, isolating issues and talking back and forth. At some point, I will accept questions from the floor.

In this paper, Maritain's theory, to explore culture, history and the relationship between the natural moral law. Provides a natural moral law and moral principles common starting point for dialogue, so that different religious, cultural, philosophical system can have a space for dialogue. This article first discusses Maritain's theory, the combination of state-like problem, introducing the principle of asymptotic lines, and to test how the history of a cultural understanding and implementation of the amount of natural moral law. And the (...) theory is applied to the case of the Five Emperors of ancient China: How to evolve from polygamy to monogamy Dov. Finally, the sexual liberation of the country and the Catholic countries of ethics as a policy to do more. This paper will attempt to explore the relationship between culture, history and the natural law. The natural moral law, based on a universally shared nature, provides a common starting point for moral dialogue between different religious, cultural and philosophical systems. Further, for Maritain history and human experience can provide a test by which competing ethical theories can be tested. (shrink)

This article discusses the nature of copyright as a fundamental right. After studying the two faces of copyright, both economic and moral, I analyze whether copyright should be seen as part of the freedom of artistic and scientific creation (article 20.1.b Spanish Constitution) or as part of the general property right (article 33). Finally, I explore the possibility of applying these conclusions to other intellectual property rights (related rights, patents, trademarks, etc.). This discussion is not trivial. The weight of copyright (...) in case of conflict with other rights (such as privacy and freedom of speech) depends on the nature of copyright as a fundamental right or not. (shrink)

In this article I take up a conceptual question: What is the distinction between ‘the law’ and the behavior the law regulates, or, as I formulate it, the distinction between what is ‘inside’ the law and what is ‘outside’ it? That conceptual question is in play in (at least) three different doctrinal domains: the constitutional law doctrines regarding the limits on the delegation of legislative powers; the criminal law doctrines regarding mistakes of law; and the constitutional rights doctrines that turn (...) on the distinction between state action and the acts of non-state actors. I argue that legal doctrines should turn solely on normative considerations and should not turn on answers to conceptual questions. However, the doctrines I discuss appear to turn on the conceptual question regarding what is ‘inside’ and ‘outside’ the law. I show how each of these doctrinal areas appears to raise this conceptual issue, and I explain how the doctrines might or might not escape being held hostage to conceptual controversy. (shrink)

In "The Rule of Rules" Larry Alexander and Emily Sherwin examine this dilemma.

In the debate between positivism and non-positivism the argument from relativism plays a pivotal role. The argument from relativism, as put forward, for instance, by Hans Kelsen, says, first, that a necessary connection between law and morality presupposes the existence of absolute, objective, or necessary moral elements, and, second, that no such absolute, objective, or necessary moral elements exist. My reply to this is that absolute, objective, or necessary moral elements do exist, for human rights exist, and human rights exist (...) because they are justifiable. (shrink)

The argument of this article is that the dual-nature thesis is not only capable of solving the problem of legal positivism, but also addresses all fundamental questions of law. Examples are the relation between deliberative democracy and democracy qua decision-making procedure along the lines of the majority principle, the connection between human rights as moral rights and constitutional rights as positive rights, the relation between constitutional review qua ideal representation of the people and parliamentary legislation, the commitment of legal argumentation (...) to both authoritative and non-authoritative reasons, and the distinction between rules as expressing a real “ought” and principles as expressing its ideal counterpart. All of this underscores the point that the dual nature of law is the single most essential feature of law. (shrink)

This book analyses the general structure of constitutional rights reasoning under the German Basic Law. It deals with a wide range of problems common to all systems of constitutional rights review. In an extended introduction the translator argues for its applicability to the British Constitution, with particular reference to the Human Rights Act 1998.

The author offers a sketch of his thesis that legal principles are optimization commands. He presents this thesis as an effort to capture the structure of weighing or balancing and to provide a basis for the principle of proportionality as it is applied in constitutional law. With this much in place, he then takes up some of the problems that have come to be associated with the optimization thesis. First, he examines the objection that there are no such things as (...) principles, but only different modes of the application of norms. Second, he discusses problems concerning the concept of an optimization command and the character of the "ought" contained in principles. He concludes that the distinction between commands to optimize and commands to be optimized is the best method for capturing the nature of principles. (shrink)

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.

Ronald Dworkin's theory of law forges a close connection between questions about the truth of propositions of law and the question of political obligation: law as integrity is a theory of legal practice that purports to explain, not only how the content of law is determined, but also why the law—in ordinary cases—imposes an obligation of obedience. The theory (as presented) is ultimately incoherent. If we accept Dworkin's theory of the grounds of law we are obliged to reject his claims (...) about its force; alternatively, if we accept his view of the force of law, we must reject his theory about its grounds: he cannot be correct about both force and grounds. Dworkin supposes that, in extraordinary cases, the force of law is cancelled or overridden; but the relevant considerations of justice are wholly internal to our identification of the content of law. Consistently elaborated, integrity denies the offending requirements legal status: lex injusta non est lex. (shrink)

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)

Legal scholars talk and write about interpretation in terms of the meaningof words, and for many legal philosophers legal interpretation involvessubsuming particular situations under general rules. However, the more youexamine legal interpretation the more confusing the whole idea ofinterpretation becomes. The aim of this paper is to use Bernard Lonergan'sdiscussion of functional specialization to make sense of this disorderlystate of affairs.

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)

This paper juxtaposes the thought of Carl G. Jung to that of Giambattista Vico , aiming primarily at overturning all currently dominant historicist readings of Vico's political philosophy. On the way, I illuminate Vico's rational or non-dogmatic response to both medieval Christian theology and modern "scientific" philosophy . The Vico emerging through his own arguments and "reasoning" is a reviver of political philosophy in the Socratic tradition of Plato and Cicero.

It has become increasingly popular to argue that legal positivism is actually a normative theory, and that it cannot be purely descriptive and morally neutral as H.L.A. Hart has suggested. This article purports to disprove this line of thought. It argues that legal positivism is best understood as a descriptive, morally neutral, theory about the nature of law. The article distinguishes between five possible views about the relations between normative claims and legal positivism, arguing that some of them are not (...) at odds with Hart’s thesis about the nature of jurisprudence, while the others are wrong, both as expositions of legal positivism or as critiques of it. Legal positivism does not necessarily purport to justify any aspect of its subject matter, nor is it committed to any particular moral or political evaluations. (shrink)

The goal of this dissertation is to explore and evaluate Ronald Dworkin's hermeneutical theory of law. I argue that Dworkin 's theory of law is a "hermeneutical theory." I justify my classification and show how Dworkin's theory fits in the contemporary debates in hermeneutics and how it contributes to these debates. I relate Dworkin's hermeneutical theory to the works of Hans-Georg Gadamer and Jurgen Habermas. ;I thematize the dialogical and reconstructive nature of Dworkin's hermeneutical theory, and I argue that Dworkin's (...) hermeneutical theory has the resources to respond to the fundamental charges of solipsism and of misunderstanding the relation of law and literature . ;I also relate Dworkin's hermeneutical theory to the law and literature movement in legal scholarship, and I argue that legal interpretation is a form of story-telling. ;I illustrate my interpretation by discussing several landmark U.S. decisions, Brown v. Board of Education , Griswold v. Conn. , and Texas v. Johnson . I also discuss a landmark South African judicial decision, The State v. T. Makwanyane and M. Mechunu. (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)