In this paper we investigate how to represent and reason about legal abrogations and annulments in Defeasible Logic. We examine some options that embed in this setting, and in similar rule-based systems, ideas from belief and base revision. In both cases, our conclusion is negative, which suggests to adopt a different logical model. This model expresses temporal aspects of legal rules, and distinguishes between two main timelines, one internal to a given temporal version of the legal (...) class='Hi'>system, and another relative to how the legal system evolves over time. Accordingly, we propose a temporal extension of Defeasible Logic suitable to express this model and to capture abrogation and annulment. We show that the proposed framework overcomes the difficulties discussed in regard to belief and base revision, and is sufficiently flexible to represent many of the subtleties characterizing legal abrogations and annulments. (shrink)

This work adopts H. Kelsen’s concept of legal system, proposes a formal definition for such notion, and introduces an operational semantical framework for legal systems that are situated in agent societies. Agent societies are defined. Relevant formal properties of situated legal systems are discussed; the way they are exposed in the operational semantical framework is explained, and their truth formally proved. Also, for the sake of a better understanding of the legal-theoretic assumptions of the paper, (...) recurring issues regarding Kelsen’s theory of law are briefly reviewed. They are put in confrontation with the points of view of R. Dworkin, H. Hart, and J. Raz, and an attempt is made to clarify them from the perspective of the provided formalization. A brief case study in agent-based modeling and simulation of public policy processes is presented, as an illustration of the way of using situated legal systems, and the proposed operational semantical framework, in a practical application. (shrink)

It will be argued, firstly, that there is a link between the legal validity of a norm and the rational justifiability of a requirement that judges should apply this norm, based on a normative conception of legal validity and the postulate that judges should act as rational persons; secondly, that rational justifiability of legal norms requires the construction of a legal system in a model of principles that differs from theories, e.g., of Kelsen, Hart, Dworkin (...) and Alexy, which are not fully adequate for a normative conception of law. (shrink)

This book takes us far beyond the usual focus of comparative law with analysis of a broad range of jurisdictions, including mixtures of common and civil law, and also those mixing Islamic and/or traditional legal systems with those derived from common and/or civil law traditions. The discussion is situated within the broader context of the continuing tides of globalization, the emergence of Islamic governments in some parts of the Middle East, the calls for a legal status for Islamic (...) law in some European countries, and the increasing focus on traditional and customary norms of governance in post-colonial contexts. (shrink)

Abstract:We aim in this paper to explore several related challenges to contemporary analytical legal theorists who accept as theoretically foundational the state-based view of legality and legal system advanced by H.L.A. Hart. We contend that this approach contains internal explanatory problems which limit the view’s capacity to account for novel prima facie legal phenomena outside the typical experience of the law-state. We supplement the analytical approach by advancing the rudiments of what we call an ‘inter-institutional theory (...) of legality,’ a theory of legality derived from a morally-neutral, descriptive-explanatory picture of legal system qua system of legal institutions. Our theory additionally enables us to account for the novel prima facie legal phenomena we identify, and to conclude that while prior analytical legal theorists’ approaches to legality and legal system were historically right to depart from the example of the municipal legal system, that example and departure point are no longer most salient, so explanation of the legality within the state is no longer sufficient as a general explanation of legality.Resumen:En este artículo los autores se proponen explorar diversos retos que enfrentan los teóricos analíticos del derecho contemporáneos, los cuales han aceptado que una perspectiva estatista del sistema jurídico y de la legalidad —introducida por H. L. A. Hart— es fundamental como punto de partida en la teoría. Los autores sostienen que este enfoque contiene problemas explicativos internos que limitan su capacidad para explicar fenómenos jurídicos prima facie novedosos que no se ajustan a la experiencia paradigmática de un derecho-estado. Los autores reformulan el enfoque analítico mediante la introducción de las bases de lo que deno minan una “teoría de la legalidad interinstitucional”, esto es, una teoría de la legalidad derivada de una noción moralmente neutral, descriptiva y explicativa del sistema jurídico como un sistema de instituciones jurídicas. Esta teoría permite, además, explicar los fenómenos jurídicos prima facie novedosos que identifican los autores; y concluir que si bien los enfoques anteriores hacia el sistema jurídico y la legalidad de los teóricos analíticos estuvieron históricamente en lo correcto al tomar como punto de partida el ejemplo de un sistema jurídico municipal, ese ejemplo y punto de partida han dejado de ser relevantes, dicho ejemplo y punto de partida no resulta suficiente, por lo que la explicación de la legalidad dentro de los confines del Estado no es suficiente para una explicación general de la legalidad. (shrink)

This study investigates how diverse European legal systems and financial structures influence corporate social and environmental responsibility. The argument is developed by means of a framework that integrates legal systems and financial structures. Hypotheses relating to environmental responsibility have been tested using Innovest data gathered between 2002 and 2007 from 645 companies in 16 countries; and hypotheses relating to social responsibility have been tested using Innovest data gathered between 2004 and 2007 from 600 companies. The findings demonstrate that (...) legal systems influence corporate responsibility (CR) in both social and environmental spheres. They also support the claim that corporations are more likely to act in environmentally responsible ways when there are strong and well-enforced state regulations in place to ensure such behavior. Company size is shown to have a greater impact on CR than either excess cash or performance. Large companies tend to be more visible than small ones do, and society expects them to behave in a more socially and environmentally responsible manner regardless of their financial performance or available cash. Finally, these findings support the hypothesis that capital structure significantly influences CR: companies with a high number of publicly held shares and a low percentage of debt are more likely than others to commit themselves to social and environmental activities. (shrink)

What does it mean to assert or deny the existence of a legal system? How can one determine whether a given law belongs to a certain legal system? What kind of structure do these systems have, that is--what necessary relations obtain between their laws? The examination of these problems in this volume leads to a new approach to traditional jurisprudential question, though the conclusions are based on a critical appraisal, particularly those of Bentham, Austin, Kelsen, and (...) Hart. (shrink)

A considerable number of books and papers have analyzed normative concepts using new techniques developed by logicians; however, few have bridged the gap between the English legal culture and the Continental tradition in legal philosophy. This book addresses this issue by offering an introductory study on the many possibilities that logical analysis offers the study of legal systems. The volume is divided into two sections: the first covers the basic aspects of classical and deontic logic and its (...) connections, advancing an explanation of the most important topics of the discipline by comparing different systems of deontic logic and exploring some of the most important paradoxes in its domain. The second section deals with the role of logic in the analysis of legal systems by discussing in what sense deontic logic and the logic of norm-propositions are useful tools for a proper understanding of the systematic structure of law. (shrink)

What does it mean to assert or deny the existence of a legal system? How can one determine whether a given law belongs to a certain legal system? What kind of structure do these systems have, that is--what necessary relations obtain between their laws? The examination of these problems in this volume leads to a new approach to traditional jurisprudential question, though the conclusions are based on a critical appraisal, particularly those of Bentham, Austin, Kelsen, and (...) Hart. (shrink)

How have legal philosophers systemized law, and what types of assumptions have they made in undertaking this task? In what sense is law a system, and how is it maintained as such? This translation of a French book answers these two core inter-related questions by surveying and analyzing the theories of a number of important European legal philosophers as well as offering its own distinct theory for viewing the law as a system.

Equal Justice: Fair Legal Systems in an Unfair World, by Wilmot-SmithFrederick. Cambridge, MA: Harvard University Press, 2019. Pp. 256.

If someone assaults you, should they get a milder penalty if they are rich than if they are poor? We wouldn't dream of passing a law that formalized such an arrangement. But the design of our legal systems in the US, UK, and elsewhere, which permits people with sufficient money to pay for better lawyers, means that wealth often does make a difference to legal outcomes. Justice, then, depends not only on the substance of the laws we pass, (...) but on the design of the system that administers and enforces them. Philosophers and legal theorists, however, have paid relatively little attention to what justice demands of the general design and structure of the legal system. Equal Justice argues among other things that market principles should not determine access to legal resources. If, for example, a large corporation sues a small startup, either the corporation has to use a law firm of the quality that the startup can afford or--which would be preferable, given the corporation's in-house lawyers--the startup would be given a subsidy to afford a top firm. The author builds on this core idea of equal access to resources to work out how the court system and the legal profession should be structured in order to ensure a generally just legal system. (shrink)

A legal system consists of a complex body of practices—primary and secondary—, particularly practices of reasoning and justification. The intellectual, theorized aspect of legal order is embodied in legal doctrine: the corpus of norm-sentences, norms and rules, principles, doctrines and concepts used as basis for legal reasoning and justification. It includes elaborate conceptual structures of principles and doctrines, explicit and sophisticated forms of reflection and criticism. It is only when we have understood the nature of (...) legal doctrine that we can comprehend the workings of courts, lawyers and even legislatures. Concerning the need for a new conception of legal theory one question arises, above all, especially when external and internal observation as well as the critical reflection of the premises and presuppositions of all dealings with the law permit a degree of distance, the question, namely, whether it is not an increasing application of scientific methods that is needed, in the sense that the development of a legal theory from the beginning involves the integration of a norm-descriptive point of view and intellectual stand-point with the norm-prescriptive theory of law, by way of complementing each other, as it were (multi-level-approach to law). This, at least, appears to be the only way of clarifying also the relationship between le­gal theory and philosophy and the theory and sociology of law. The inevitable consequences of the development of a theory of norms and action also have to be drawn from this. (shrink)

This book provides a fascinating and critical insight into familiar and less familiar mixed legal systems, taking the reader on a voyage of discovery from St Lucia and Guyana to the islands of the Seychelles and Mauritius. It considers those mixed systems which share boundaries with unmixed ones, such as Scotland and Quebec, and those located off-shore of major and dominant jurisdictions such as Jersey off the coasts of France’s civil law and England’s common law system, as well (...) as Cyprus, situated between the influences of Europe and those of the Middle East. (shrink)

Volume 10, Issue 2, June 2019, Page 229-236.

In this article I discuss various possible ways of understanding the character of and relations between legal systems in the European Union. In particular, I consider whether there is an EU legal system distinct from and in addition to the national legal systems of EU Member States, or whether it is better to conceive of EU law merely as an aspect of Member States’ legal systems, or indeed whether we should think of there being but (...) a single EU legal system of which Member States’ “national legal systems” are in some sense sub-systems.Resumen:Este artículo discute varios modos posibles de comprender el carácter de los sistemas jurídicos de la Unión Europea y sus relaciones. En particular, se plantea la cuestión de si existe un sistema jurídico en la Unión Europea adicional y distinto del sistema jurídico nacional de los Estados miembros; o si es mejor concebir el derecho de la Unión Europea simplemente como un aspecto de los sistemas jurídicos de los Estados miembros; o bien, si es que deberíamos pensar que no hay sino sólo un sistema jurídico en la Unión Europea con respecto del cual los “sistemas jurídicos nacionales” de los Estados miembros son en cierta forma subsistemas. (shrink)

This timely book offers a theistic approach to secular legal systems and demonstrates that these systems are neither agnostic nor atheist. Critical but succinct in its approach, this book focuses on an extensive range of liberal legal approaches to religious and moral issues, and subjects them to critical scrutiny from a secular perspective. Expertly written by a leading scholar, the author offers a rare combination of profundity of ideas and simplicity of expression. It is a ringing defense of (...) the theistic conception of secular legal systems and an uncompromising attack on the agnostic and atheist conception. (shrink)

In accordance with the spirit of the Third Plenary Session of the Eleventh Central Committee of the Chinese Communist Party [December 1978], Comrade Hua Guofeng, in his "Report on the Work of the Government" delivered to the Second Session of the Fifth National People's Congress [address of June 18, 1979], provided a thorough discussion on the strengthening of socialist democracy and improvement of the socialist legal system. This session of the Congress solemnly passed the Electoral Law, the Criminal (...) Law, the Law of Criminal Procedure, and other important laws, opening a new chapter in the establishment of democracy and law in our nation. This is highly significant as a major turning point for workers throughout the nation, lifting the historical lid at all levels so that we may proceed with the four modernizations with a common mind and purpose throughout the nation, to further develop democracy and fulfill the establishment of the legal system. This will affect the consolidation and development of the state system of the dictatorship of the proletariat. It will protect the personal interests of the people, prevent the revival of counterrevolutionaries, and guarantee the realization of the four modernizations. (shrink)

This essay addresses the question: What is the probative value of including neuroscience data in court cases where the defendant might have had a traumatic brain injury? That is, this essay attempts to articulate how well we can connect scientific data and clinical test results to the demands of the Daubert standard in the United States’ court system, and, given the fact that neuroimaging is already being used in our courts, what, if anything, we should do about this fact. (...) Ultimately, I am not sure that there are completely satisfactory answers to this query at this particular time in our legal history. I briefly rehearse the recent use of brain research in our legal system, summarize how neuroscience data regarding TBI and its relation to poor behavioral outcomes are currently used in the courtroom, review challenges with using these data, and highlight fundamental tensions between how the legal system views the causes of behavior and how medicine, neuroscience, and psychology do. Until these tensions are resolved, it is unclear the place neuroscience data should have in courts. (shrink)

Overgeneralizations by psychologists of the research evidence on memory and eyewitness testimony, such as “memory decays with time” or “memories are fluid and malleable,” are beginning to appear in legal judgements and guidance documents, accompanied by unwarranted disparagement of lay beliefs about memory. These overgeneralizations could have significant adverse consequences for the conduct of civil and criminal law.

This book addresses three major questions about law and legal systems: (1) What are the defining and organizing forms of legal institutions, legal rules, interpretive methodologies, and other legal phenomena? (2) How does frontal and systematic focus on these forms advance understanding of such phenomena? (3) What credit should the functions of forms have when such phenomena serve policy and related purposes, rule of law values, and fundamental political values such as democracy, liberty, and justice? This (...) is the first book that seeks to offer general answers to these questions and thus gives form in the law its due. The answers not only provide articulate conversancy with the subject but also reveal insights into the nature of law itself, the oldest and foremost problem in legal theory and allied subjects. (shrink)

The paper claims that the rule of recognition, given the way it is presented by Hart, cannot be a constitutive rule of any legal system as a whole, but rather a constitutive rule of legal rules as elements of a legal system. Since I take the legal system to be an institutional artifact kind, I claim that, in order to account for a legal system as a whole, at least two further (...) constitutive rules, in addition to the rule of recognition as a token-element constitutive rule, are needed – one constitutive of legal officials and the other constitutive of a legal system as a token. However, given the central role the legal officials' practice occupies in establishing a particular instantiation or token of a legal system, I also claim that the rule of recognition cannot be understood as 'merely' a token-element constitutive rule but also as a legal system's implementation or concretisation rule. (shrink)

In general, the development of the theory of the legal system has focused on the contributions of legal positivism authors, leaving to one side the contributions of natural law theory. This study seeks to rebuild the theory of the legal system developed by the School of Salamanca’s founder, Francisco de Vitoria, showing its explanatory advantages in comparison with the first analytical legal theory of legal system formulated by John Austin. This study shows (...) that, just as in Austin, it is possible in Francisco de Vitoria to reconstruct the existence and identity criteria of legal systems from the notions of command and sovereignty. These findings allow us to maintain that 300 years before Austin, and in a non-analytical environment, Francisco de Vitoria developed a theory of legal system. (shrink)

An underpinning assumption of modern legal positivism is that the question of how legal standards differ from normative standards in other spheres of human thought is resolved via the concept of a legal system and the notion of internal logic, through use of contextual definition. This approach is seen to lead to an untenable form of structuralism altogether at odds with the positivist's intentions. An alternative strategy is offered which allows the positivists to retain their deepest (...) insights, though at a price. (shrink)

Older statutes sometimes alter the legal content of newer statutes in a way not apparent from the text of the newer statutes. The puzzle is how, even if a new statute is the choice of the current polis, the legal content created in part by the elderly statute is also the choice of the current polis. I consider several possible answers, including a legislative intent account and Dworkin’s, and argue that none of them is satisfactory. I then offer (...) my own account, the De Re Account, which depends on distinguishing choosing under a description from choosing de re and noting that background norms and conventions sometimes determine what one does. In the case of legislation, because of the pragmatic norms for legal language and conventional practices against which a legislature acts, the legal content of the newer statute is chosen de re. (shrink)

This influential book makes sense of abstract debates about the nature of law and the rule of law by situating them in the real-world context of apartheid-era South Africa. The new edition examines the transformation in South Africa since the end of apartheid, and the shift in debates surrounding the rule of law post 9/11.

The book under review consists of two parts closely related to its title: I Introduction to Deontic Logic, II Logic and Legal Systems. Each part is divided into chapters. Part I brings the following units: 1. The Language of Logic and the Possibility of Deontic Logic; 2. Paradoxes and Shortcomings of Logic; 3. Norm-propositions, Conditional Norms, and Defeasibility, and Part II the following: 4. Legal Systems and Legal Validity; 5. Legal Indeterminacy: Normative Gaps and Conflicts of (...) Norms; 6... (shrink)

This article provides a brief introduction to the interplay between law and religion in the health care context. First, I address the extent to which the commitments of a faith tradition may be written into laws that bind all citizens, including those who do not share those commitments. Second, I discuss the law’s accommodation of the faith commitments of individual health care providers—hardly a static inquiry, as the degree of accommodation is increasingly contested. Third, I expand the discussion to include (...) institutional health care providers, arguing that the legal system’s resistance to accommodating the morally distinct identities of institutional providers reflects a short-sighted view of the liberty of conscience. Finally, I offer some tentative thoughts about why these dynamics become even more complicated in the context of Islamic health care providers. (shrink)

How should courts interpret the law? While all agree that courts must be objective, people differ sharply over what this demands in practice: fidelity to the text? To the will of the people? To certain moral ideals? In Judicial Review in an Objective Legal System, Tara Smith breaks through the false dichotomies inherent in dominant theories - various forms of originalism, living constitutionalism, and minimalism - to present a new approach to judicial review. She contends that we cannot (...) assess judicial review in isolation from the larger enterprise of which it is a part. By providing careful clarification of both the function of the legal system as well as of objectivity itself, she produces a compelling, firmly grounded account of genuinely objective judicial review. Smith's innovative approach marks a welcome advance for anyone interested in legal objectivity and individual rights. (shrink)

This paper considers whether the positivist account of law is useful in guiding states in how they should deal with religious or customary legal orders followed by minority groups within their jurisdiction. It argues, first, that such orders can be said to exist despite the prevalence of disagreement about the grounds of law. It then argues, contrary to views advanced by Scott Shapiro and Joseph Raz, that there are good reasons for perceiving that the resolution of legal disputes (...) by reference to moral principle involves the application of pre‐existing law. However, the paper concludes by arguing that the Social Thesis has an important role in supplying the basis upon which the application of law can be deemed to be legitimate, and that this has relevance to the way states might respond to minority legal orders. (shrink)

The legal system affects behavior not just directly, by imposing sanctions, but also indirectly, by producing information on how people behave. For example, internal company documents exposed during litigation will help third parties assess whether they trust a company and want to keep doing business with it. The law therefore affects behavior by shaping reputations. Drawing on economics, communications, and a nascent multidisciplinary literature on reputation, Roy Shapira highlights how reputation works, and how information from the courtroom affects (...) the court of public opinion, with a particular emphasis on the role of the media. By fleshing out interactions between law and reputation, Shapira corrects common misperceptions about the ability of market forces to discipline corporate behavior and adds to timely, ongoing debates such as the desirability of heightened pleading standards or mandatory arbitration clauses. Law and Reputation should interest any scholar who invokes notions of market discipline in their work. (shrink)

Technological developments increasingly enable monitoring and steering the behavior of individuals. Enforcement of the law by means of technology can be much more effective and pervasive than enforcement by humans, such as law enforcement officers. However, it can also bypass legislators and courts and minimize any room for civil disobedience. This significantly reduces the options to challenge legal rules. This, in turn, can impede the development of legal systems. In this paper, an analogy is made with evolutionary biology (...) to illustrate that the possibility to deviate from legal rules and existing norms is sometimes necessary for the further development of legal systems. Some room to break the law, for instance, through civil disobedience or imperfect enforcement of the law, will ensure sufficient variation. This allows for properly evolving legal systems that can continue to provide fair solutions, even when society and concepts of fairness further develop. (shrink)

The article emphasizes the importance of the Charter of Local Self-Government to the Lithuanian national legal system. Lithuania has ratified the Charter, not only acknowledged, but also committed to implement its provisions. The Charter consists of 13 items representing the essence of local self-government, which sets the content and is the principal purpose of local public. The principles should be not only a declaratory move into the national legal system, but also recognized as a state’s obligation (...) to follow them. The article analyzes the content of the Charter principles, their incorporation level in the national legal system. During the study noted that between the executive and local authorities are the differences of interpreting and dysfunctions implemented a few principles of the Charter: subsidiary and decentralization, local government financial autonomy and the freedom of formation executive local bodies. (shrink)

Abstract.Although the Hart/Dworkin debate has as much to do with Dworkin's affirmative theory of judicial discretion as with Hart's more comprehensive theory of law, the starting point was of course Dworkin's attempt to demolish the “model of rules,” Hart's alleged analysis of legal systems as collections of conclusive reasons for specified legal consequences. The continuing relevance of this attack for the prospects for any theory of law is the subject of the present essay.

The book On Contemporary Chinese Legal System written by Xiaobo Dong and Yafang Zhang takes the socialist legal system with Chinese characteristics as its central research subject. Through meticulo...