For quite some time Samuel of Pufendorf is considered to be one of the early representative of a balanced philosophy of state concerning his discussion of a right to resist. The article examines this estimation in an examination of Pufendorf ’s De iure naturae et gentium and the consequential work De officio hominis et civis. For this purpose in an initial step the rights of subjects and Pufendorf ’s valuation of them will be examined; subsequently the monarch’s rights are being (...) studied. Both are connected by the contractual work which is meant to constitute the state. The result show that Pufendorf values the rights of monarchs much higher than those of subjects, he turns them in to the despotism of the monarchs. The state appears to be one-sidedly arranged in favor of the monarch. (shrink)

The present essay intends to reconstruct the fundamental function of the juridical-formal procedure, carried out by equity in Samuel Pufendorf ’s legal theory, aiming at the adequate application of the positive norm to an exceptional case. To this end, equity conveys the moral contents of the natural law within the positive one, especially if the latter presents gaps or is in contradiction with the former. The essay also examines the characteristics of the equitable judgement, conceived by Pufendorf in the form (...) of the rhetorical syllogism or enthymeme, operating within the moral discipline of prudentia. As such, equity is therefore closely linked to the pufendorfian methodological question if man’s free action is measurable with the exact mathematical criteria or with the most approximate equitable ones. In this methodological context, Pufendorf interprets equity as the criterion for measuring the moral quantity of an action. (shrink)

Philosophical debates on punishment mainly - and exhaustively - revolve around the traditional dipole “retribution - deterrence”; or, lately, seek for some alternative counterproposal. In all sides of the debates, Kant is standardly depicted as the advocate of a traditional, outmost punitive theory of justice; the kind of heritage modern-day “retributivists” seek to reassess, while “preventive” or “restorative” justice defenders aim to abandon. In the present paper, we intend to scrutinize Kant’s own views on crime and punishment, as an integral (...) part of his overall legal-practical philosophy; and, by doing so, to address that Kant is not at all the blind retributivist the above theorists perceive; what is more, he sets a philosophical framework that is able to overcome the flaws of all three, standard conceptions of criminal justice. Finally, in the light of the above, we bring forth the aspects of this Kantian framework, that are useful in assessing current legal systems and required legal reforms. (shrink)

On the basis of comparative views on social theories that deal with the normative foundations of modern societies, the genesis of law is examined in the light of Norbert Elias’ reflexions on the process of civilization. One crucial element is the surmounting of the traditional division between micro and macro structures, which, in Elias’ thought, can be achieved by taking into account the relation between sociogenesis and psychogenesis. The psychogenetic development serves as main focus, which - with regard also to (...) Philosophical Anthropology - is examined in it’s effects on the emergence of legal awareness. (shrink)

This paper will develop a new reading of the institutional pattern. According to this interpretation, legal norms exist only inside of legal institutions - on the assumption that law consists of legal institutions and that legal norms should have meaning and normative force only inside of them. At this basic idea the thesis, which this paper proposes, tries to connect Robert Alexy’s concept of normative optimization of principles to the institutional theory: legal norms as optimization of principles, which shape a (...) legal institution. (shrink)

Niklas Luhmann is particularly known for his sociological systems theory. He is less well known as a power theorist. In the early works “Macht im System” and “Macht”, he presents a comprehensive understanding of power that deviates considerably from prevailing concepts. For Luhmann, power is not an ability or a human quality. For him, power is part of the communication process and a central aspect of his early systems theory as a communication medium. For a better understanding, Luhmann’s concept of (...) power is first classified into systems theory. Then, the essential premises of Luhmann’s understanding of power are worked out. Finally, the paper discusses some aspects of Luhmann’s concept of power and places them in a larger context. (shrink)

Niklas Luhmann’s theory of evolution is focused on the internal complexity of a system which brings a lot of varieties of possibilities into play, although it is capable of avoiding the idea of an external causation with the consequence of adaptation to innovation. Such an assumption would not be compatible with the construction of the autopoiesis of systems. Upon the basis of this idea, disruptive processes of societal transformation are also supposed to be unable to impede the construction and preservation (...) of useful complexity. The article develops the argument that the distinction of a centre and a periphery of the legal system is no longer plausible if the transformation of legal practices is taken into consideration. The increasing importance of the periphery compels us to observe the impact of practices on evolutionary processes which have not always already been anticipated by the system. (shrink)

Hegel is neither a worshiper of the war nor remains a realist who sees right-philosophically in its inescapability. This paper seeks to explain, in the light of his philosophy of history, the reasonable necessity of overcoming the war. According to Hegel, war, if inevitable, is desirable only as separate from the civic spheres and without personal hatred, but it has right-philosophically the significance of being the ethical moment in realizing the ideality of state unity. But this realization must also be (...) based, in international relation, on the principle eligibility of the universal world spirit. This paper intends to show that the intellectual struggle for such eligibility leads to the search for an abstract, limited war without physical annihilation. (shrink)

This paper critically examines two formulations of the view that the crime of using child soldiers is less serious than other international crimes. The first formulation presents a sociological argument that using child soldiers is not as serious as other international crimes involving rape or murder, and the second formulation relies on deontological moral norms to argue that using child soldiers is less serious than crimes involving murder because child soldiering does not violate fundamental human values, like the right to (...) life. After critically examining each formulation of this view, I argue that using child soldiers does violate a fundamental human value by attacking the dignity of the developing child, where dignity is understood in terms of a person’s moral agency. (shrink)

The neutrality of a state towards different theories of its citizens’ conceptions of the good life is an essential core of liberal, pluralistic constitutions. The purpose of this article is to analyze the extent to which various types of neutrality stated in the German constitution were respected in the parliamentary decision on assisted suicide. The author finds that the German Bundestag did not act in a sufficiently neutral way with regard to opportunities and justification when parliament made its decision to (...) prohibit business-like assistance to suicide. The law’s justification shows that the members of the German Bundestag mistakenly interpret the different concepts of conscience in Articles 4 and 38 Grundgesetz identically. In doing so, the majority of parliament has turned its individual moral concepts of good dying into a generally valid law by majority decision. As a result, the German Bundestag has considerably restricted the implementation of pluralistic moral theories of good dying that deviate from the one within the law, and thereby also the constitutionally guaranteed individual freedom of conscience of the citizens. (shrink)

Christian theology conceives of ‘sacrificium intellectus’ to account for the message of Saint Paul that he will “take every thought captive to obey Christ”. Human insight gives way to the revealed truths of religion. In modern western cultures to explain the natural world has become the domain of science, and the imposition of collective rules of how we should live was shifted to democratically elected parliaments. In Germany legislation of bioethical issues is often justified with reasons that violate standards of (...) cognitive rationality. Is this another case of sacrificium intellectus? The Federal Constitutional Court refrains from the control of legislative arguments by conceding a broad margin of appreciation for the legislator. People have, however, a right to justification; they must not be subjected to arbitrary legal power. While the practice of democratic rule may seldom comply with the expectations of ‘government by discussion’, it is neither likely to gain acceptance as ‘government without discussion’. To impose legal force on the basis of false arguments and unsound reasoning is not a legitimate sacrificium intellectus, it is an intellectual scandal. (shrink)

The notion of moral imputation has so far received little attention in the reception of the Kantian work. Owing to a traceable reduction in the literal meaning of the notion of deed, a concept which is vital for the operation of imputation, resulting in the modern notion of fact, it was so far overseen, that the notion of freedom, which is already presupposed as determining factor in the Kantian notion of imputation, is itself based on a relation of imputation that (...) goes by the name of the famous “factum of reason”. In the light of the above, this article examines the notion of imputation as it is established more closely in the introduction of the “Metaphysics of Morals” by Immanuel Kant. (shrink)

This paper is a contribution to the political and legal theory on immigration. It proposes a revised justification of a political community’s competence to control immigration which draws upon both Pevnick’s account of “associative ownership” and Blake’s account of the responsibility to guarantee fundamental rights. I outline an argument structured around the concept of “jurisdiction” as delimiting a political and legal area. The internal and external dimensions of this jurisdiction are cumulative parts of the justification proposed. In the internal dimension, (...) I argue that we should shift the focus from a general justification to a set of situation-specific justifications. The concept of “costs” allows for specifying the link between members’ claim upon their common resources and the different sub-competences to control immigration. In the external dimension, I claim that exclusion effects resulting from the exercise of the competence to control immigration should be considered to trigger responsibility of the political community. Drawing upon Ypi’s Kantian theory of territorial claim, these effects are reconstructed as triggering three types of duties. Overall, the paper outlines a provisional and conditional account of the competence to control immigration. The internal and external dimensions of jurisdiction give meaning to the ambition to combine the competence claimed by a liberal political community and its broadly cosmopolitan commitments. (shrink)

Since the Brexit-vote and the election of a far-right business man as President of the United State, the social sciences have been struggling to explain the societal conditions that nourish the increasing appeal of populist parties and leaders in the Western world. The article reconstructs the potential of Margaret Canovan’s work for a sociological approach towards populism. With Canovan, it is possible to focus research on the emotional appeal of the populists’ call on ‘the people’. Reconstructing this emotional appeal does (...) not only explain how populists succeed to present ‘the people’ as a new, politically conscious group, it may also render manifest the specificities of the crisis of post-industrial societies that underlies this new group-formation. (shrink)

This article asks whether it is morally acceptable for a liberal democratic state to consider refugees’ religious beliefs when determining which refugees it will allow to resettle in its territory. I examine four arguments that might be advanced to defend such religious discrimination: i) that it is not even pro tanto wrongful; ii) that refugee resettlement is a supererogatory act, and therefore the way in which a state might choose to engage in it cannot be a proper subject of moral (...) criticism; iii) that religious discrimination is necessary in the refugee resettlement context in order to preserve the political culture of the receiving state; and iv) that selecting refugees for resettlement in a religiously discriminatory manner may lead to a net increase in the total number of the world’s refugees that are resettled. I conclude that the first and second rationales should be rejected outright. I argue that the third argument could theoretically succeed in justifying religious discrimination in refugee resettlement decisions, but is not at all plausible in the actual world we inhabit today, given the very low number of refugees that are resettled. I recommend caution in advancing the fourth defence of religious discrimination, and elucidate the range of considerations – as well as the empirical facts that cannot be assumed into existence in advance – upon which its success would depend. (shrink)

Forming a state is still a necessary task which is difficult from both a practical and a philosophical point of view. State building requires a return to the human world; trust must be built and responsibility must be recognizable in state action. This appears to be taken for granted in the modern age; the not self-evident only results from an open discussion about the possibility of a renewed, renewing formation of the state. Confidence in the state includes historical insights and (...) a critical discussion of the functionality of conflicts. One also needs a discussion about the fundamental possibilities that a state offers, its connection with the language of morality. (shrink)

This paper focusses on populist resistance against the EU and the European Convention of Human Rights, in Hungary and the UK. Both countries seem to voice a more general quest away from Europeanization and towards more national sovereignty, which will undoubtedly result in important constitutional changes in the coming years. In this paper, I shall first of all study the notion of populism in general as it manifests itself in many countries in the West. Secondly, the focus is on Hungary (...) and the UK – countries that are witnessing increasing resistance against European institutions as a result of populist influence. Thirdly, the background of their revolt is analyzed. Finally, the article will ponder the consequences of the populist challenge to liberal democracy. (shrink)

We argue that legal argumentation, as the subject matter as well as a special subfield of Argumentation Studies, has to be examined by making skilled use of the full panoply of tools such as argumentation and story schemes which are at the forefront of current work in AS. In reviewing the literature, we make explicit our own methodological choices and then illustrate the implications of such an approach through the analysis of a case study in the English law of evidence. (...) We argue that a clear distinction must be drawn between practical argumentation and stories. Because of the institutional separation between legal judgment and fact-finding in common-law jury trials, we argue for the combination of argument and story-based analysis. (shrink)

Freedom and law in Hannah Arendt’s thought are not spontaneously compatible and one might think they are almost impossible to occur together. Due to the importance of both freedom and law this might be considered Arendt’s greatest puzzle. Many scholars have addressed this problem but few have paid attention to the answers to this difficulty she found in political events and to the eventual solution to this puzzle, the phenomenon of civil disobedience. This paper aims to address this gap.

To secure individual freedom by granting equal rights is a central achievement of the Rule of Law. A gap does, however, remain between the equality of rights and the inequality of economic resources. Soviet lawyer Evgeny B. Pashukanis formulated in 1924 that it is the law which, through the abstractness of its language and institutions, allows those rich in power and possession to disguise their material interests. In his opinion, the transformation from capitalism to communism would inevitably require all law (...) to wither away. The metaphor gives way to a critical reflection about where the legal abstractions come from and what they do to our everyday relations. This text argues that it is even more an invitation to think about how this reflection can be made accessible to a greater public. (shrink)

This paper looks into the writings of Jürgen Rödig on legal logic with the aim of identifying those results which still appear to be essential contributions to legal theory. Of particular relevance are the reasons why propositional and predicate logic in its classsical form should be considered adequate and by and large sufficient to represent formal legal reasoning. Other issues discussed in this paper are Rödig’s views concerning specifically legal variants of logical arguments, the axiomatic method in legal theory, ways (...) of substantiating general norms as a central step in what constitutes the legal syllogism, the correct method of interpreting written law, the question as to whether there are formal characteristics of general norms, and structural properties of legal definitions and of similar legislative drafting tools. (shrink)

The will theory of rights has so far been considered incapable of accounting for individual rights in criminal law. Adherents of the theory, therefore, defend the claim that criminal law does not assign rights to individuals. In this article I argue that criminal law in fact does assign rights to individuals and that the will theory of rights may enhance our understanding of these rights. I admit that if the theory is understood as a descriptive account, it cannot encompass rights (...) conferred by criminal law. If the theory, however, is understood as a normative theory, it can be applied to an analysis and assessment of criminal legal rules and restrictions. The aim of this article is first, to outline how a normative account of the theory is applicable for a justification of the criminal legal protection of individual entitlements. Second, the major implications of the approach are outlined. The normative will theory on the one hand includes a volenti non fit iniuria principle. On the other hand, it provides support for an idea of punishment as restitution. (shrink)

This paper compares and contrasts the epistemologies of Rawls and Dworkin, both usually presented as either Kantian or pragmatist. It considers in particular the main pragmatist theses underlying their work, namely anti-metaphysics, anti-skepticism, fallibilism and objectivity as conditioned by practice, as well as their account of truth.It then examines an approach which takes Rawls’ epistemology as “anti-foundationalist” and argues that, to the extent that this qualification is connected to deliberative democracy, it should not be accepted without reservation as an adequate (...) account of the views of either philosopher. (shrink)