The Uppsala School in philosophy and the Vienna Circle are prima facie similar currents in contemporary philosophy. Both reject metaphysics, claim that reality is a spatio­‑temporal realm and adhere to noncognitivism in terms of values. However, justifications of these assumptions are quite different. In the following article we reconstruct main theses of both mentioned currents and then we indicate their impact on one of the major jurisprudential movements, namely Scandinavian Legal Realism. We focus on Alf Ross’ legal philosophy, (...) as it was an attempt to accommodate both: the philosophy of the Uppsala School and of the Vienna Circle. We trace those two sources of inspiration in Ross’ theory of legal validity and of legal concepts. (shrink)

This article addresses a pertinent challenge to Scandinavian realism which follows from the widespread perception that the fundamental philosophical premises on which the movement relies, are no longer tenable. Focusing on Alf Ross’s version of Scandinavian realism which has often been at the centre of critical attention, the author argues that Ross’s theory can survive the fall of logical positivism through an exercise of philosophical reconstruction. More specifically, he claims that it is possible to dismount Ross’s (...) realist legal theory almost intact from its commitments to logical positivism and embed it into an alternative naturalist philosophical program that is currently very strong in contemporary philosophy. In so doing, the author applies a narrow Quinean conception of naturalism, also known as replacement naturalism, which differs from a broader inclusive conception which has been applied by other scholars in the field but which leaves the philosophical crisis of Scandinavian realism unsolved. (shrink)

Legal realism comes in two main versions, namely American legal realism and Scandinavian legal realism. In this article, I shall be concerned with the Scandinavian realists, who were naturalists and non-cognitivists, and who maintained that conceptual analysis is a central task of legal philosophers, and that such analysis must proceed in a naturalist, anti-metaphysical spirit. Specifically, I want to consider the commitment to ontological naturalism and non-cognitivism on the part of the Scandinavians and its implications (...) for their view of the nature of law. I argue that the Scandinavians differ from legal positivists in that they reject the idea that there are legal relations, that is, legal entities and properties, and to varying degrees defend the view that law is a matter of human behavior rather than legal norms, and that they do not and cannot accept the idea that there is a ‘world of the ought’ in Kelsen's sense. I also argue, more specifically, that the objection to non-naturalist theories raised by the Scandinavians—that there is and can be no connection between the higher realm of norms and values and the world of time and space—is convincing, and that Kelsen's introduction of a so-called modally indifferent substrate does nothing to undermine this objection. In addition, I argue that the Scandinavians can account for the existence of legal relations that do not presuppose the existence of morally binding legal norms by embracing conventionalism about the existence of the sources of law, while pointing out that in doing so they would also be abandoning their legal realism for legal positivism. Finally, I argue that the implications for legal scholarship of the realist emphasis on human behavior instead of legal norms is not well explained by the realists and appear to amount to little more than a preference for teleological interpretation of legal norms. (shrink)

Legal realism comes in two main versions, namely American legal realism and Scandinavian legal realism. In this article, I shall be concerned with the Scandinavian realists, who were naturalists and non-cognitivists, and who maintained that conceptual analysis is a central task of legal philosophers, and that such analysis must proceed in a naturalist, anti-metaphysical spirit. Specifically, I want to consider the commitment to ontological naturalism and non-cognitivism on the part of the Scandinavians and its implications (...) for their view of the nature of law. I argue that the Scandinavians differ from legal positivists in that they reject the idea that there are legal relations, that is, legal entities and properties, and to varying degrees defend the view that law is a matter of human behavior rather than legal norms, and that they do not and cannot accept the idea that there is a ‘world of the ought’ in Kelsen's sense. I also argue, more specifically, that the objection to non-naturalist theories raised by the Scandinavians—that there is and can be no connection between the higher realm of norms and values and the world of time and space—is convincing, and that Kelsen's introduction of a so-called modally indifferent substrate does nothing to undermine this objection. In addition, I argue that the Scandinavians can account for the existence of legal relations that do not presuppose the existence of morally binding legal norms by embracing conventionalism about the existence of the sources of law, while pointing out that in doing so they would also be abandoning their legal realism for legal positivism. Finally, I argue that the implications for legal scholarship of the realist emphasis on human behavior instead of legal norms is not well explained by the realists and appear to amount to little more than a preference for teleological interpretation of legal norms. (shrink)

This paper discusses the place of philosophical naturalism in the philosophy of law, with special reference to Scandinavian Realism. Hägerström originated a non-cognitivist analysis of certain fundamental legal concepts, but he also proposed an error theory. The two approaches are incompatible, but were not always clearly distinguished. Among his followers, Olivecrona and Ross gradually abandoned the latter, at least from the late 1940s. Many accounts of their views are unclear, because the presence of these two kinds of analysis, (...) their incompatibility, and the gradual abandonment of one, has often been overlooked. A corollary of the discussion is that there are some important corrigenda in the entry “Naturalism in legal philosophy” in the Stanford Encyclopedia of Philosophy. (shrink)

The European Stability Mechanism is the rescue fund that may grant loans to struggling euro zone governments by issuing bonds, collectively by the euro zone members. The implementation of the ESM spawned a lot of legal challenges brought to higher judicial authority in Ireland, Austria, Estonia, Germany and Poland. In the fall of 2012 the ESM was subject to legal analysis in the Estonian National Court, the German Constitutional Court, and in the European Court of Justice. Delivering much anticipated rulings (...) in legal challenges to the legal provisions establishing the ESM, courts avoided upsetting the complex arrangements in question by producing legal decision of direct political import and letting EU bailout measures go forward. In looking over different critical responses, we have seen an argument raised by media and legal scholars, according to which courts’ capitulation before the power of financial markets in the EMS rulings represents “a sign of judicial crisis” that marks the weakness of modern European jurisprudence. In light of their importance, we undertake a preliminary semiotic analysis of the ESM rulings of the Estonian National Court, the German Constitutional Court, and in the European Court of Justice. Our analysis aims at discerning the crucial aspects of those rulings is performed on the basis of different semiotic methodologies combined with the refined ideas of the Scandinavian analytical school of the doctrinal study of law. In traditional legal studies there seems to be a taken for granted assumption that there is one analytical way to dissect judicial reasoning of the supreme courts. This paper argues that the manner of analyzing the constitutional reasoning needs to be congruent with the particular research methodology. (shrink)

The relationship between Legal Realism and Legal Positivism has been a recurrent source of debate. The question has been further complicated by the related difficulty of assessing the internal relationship between the two main original strands of Legal Realism: American and Scandinavian. This paper suggests considering American and Scandinavian Realism as instantiations of forward-looking and backward-looking rule skepticism respectively. This distinction brings into sharp relief not only the fundamentally different relationship between each of these two (...) Realist schools and Legal Positivism but also their equally different potentials as starting points for naturalizing jurisprudence. (shrink)

The relationship between Legal Realism and Legal Positivism has been a recurrent source of debate. The question has been further complicated by the related difficulty of assessing the internal relationship between the two main original strands of Legal Realism: American and Scandinavian. This paper suggests considering American and Scandinavian Realism as instantiations of forward-looking and backward-looking rule skepticism respectively. This distinction brings into sharp relief not only the fundamentally different relationship between each of these two (...) Realist schools and Legal Positivism but also their equally different potentials as starting points for naturalizing jurisprudence. (shrink)

MacCormick and Weinberger's normative institutionalism, or neo‐institutionalist theory, is propounded as “a socially realistic development of normativism.” This theory blends normativism and realism and represents the coherent outcome of two components of each author's thought: normativism from the standpoint of legal theory; neo‐empiricism from the standpoint of philosophy generally. Scandinavian legal realism, or normative realism, is the only school of jurisprudence that can be understood as a direct offspring of one of the philosophical currents (i.e., the (...) Uppsala school) belonging to contemporary neo‐empiricism. This is why it inevitably becomes a touchstone for those legal theories – like MacCormick and Weinberger's neo‐institutionalist theory–which are not direct offshoots, but owe much to the principles and methods of neo‐empiricism. (shrink)

This edited volume explores ideas of legal realism which emerge through the works of Russian legal philosophers. Apart from the well-known American and Scandinavian versions of legal realism, there also exists a Russian one: readers will discover fresh perspectives and that the collection of early twentieth century ideas on law discussed in Russia can be understood as a unified school of legal thought – as Russian legal realism. These chapters by renowned European and Eastern European legal (...) philosophers add to ongoing discussions about the nature of law, especially in the context of developments around our scientific knowledge about the mind and behaviour. Analyses of legal phenomena carried out by legal realists in Russia offer novel arguments in favour of embracing psychological and sociological perspectives on the law. The book includes analysis of the St. Petersburg school of legal philosophy and Leon Petrażycki’s psychological theory of law. This original and multifaceted research on Russian realists is of considerable value to an international audience. Researchers and postgraduate students of law, legal theory and legal ethics will find the book particularly appealing, but it will also interest those investigating the philosophy or sociology of law, or legal history. (shrink)

In this article, the essential claims and approaches seen in American and Scandinavian legal realism are presented and compared with Islamic law. The uncertainty on which it is based constitutes the essence of legal realism; In terms of Islamic law, there is no possibility of an uncertainty approach as seen in legal realism. The agreed points became clear and fixed. On the other hand, there are different appearances of clarification, not ambiguity in ijtihad issues. Even though (...) realists reject the understanding of root and source, Islamic law, based on the Book and Sunnah is a legal system that consists of certain roots and develops with them. Despite the rejections of realists, morality and values have a central place and importance in Islamic law. While realists define justice as part of the law and subject to the direction of the law; Islamic jurists are based on the approach of interdependence. While realists reject all the rules of law formed in the process; Islamic jurists systematized the rules of law and compiled works in this context. In contrast to the realists' approach that the law will become clear and come into existence with the decision of the judge, Islamic jurists have declared the system of law, which has come into existence with ijtihad as well as what has become clear with the texts. Contrary to the unlimited pluralism seen in realism due to the rejection of the understanding of root and source, there has been limited pluralism in Islamic law, which finds its traditional meaning within the framework of source understanding. After analyzing these issues in the article, the study was completed with the presentation of the results obtained. (shrink)

The Scandinavian Realist Karl Olivecrona did not pay much attention to questions of legal reasoning in his many works. He did, however, argue that courts necessarily create law when deciding a case. The reason, he explained, is that judges must evaluate issues of fact or law in order to decide a case, and that evaluations are not objective. Olivecrona's line of argument is problematic, however. The problem is that Olivecrona uses the term "evaluation" in a sense that is broad (...) enough to cover not only evaluations, including moral evaluations, but also considerations that are not evaluations at all, and therefore his claim that judges must evaluate issues of law or fact in order to decide whether a case is false. (shrink)

Legal theory usually distinguishes only two kinds of legal realism: the American and the Scandinavian. Another school of this theoretical perspective is German legal realism, which refers to scholars like Ihering, Weber, and Schelsky. According to German legal realism, the author outlines what legal theory can do to persuade modern jurisprudence to face the social reality of law, conceived as institutionalized normative communication. The latter always occurs with reference to already valid and effectively operative legal norms (...) which are used in an established, normatively binding legal practice in a given regional society. (shrink)

The Scandinavian Realist Karl Olivecrona did not pay much attention to questions of legal reasoning in his many works. He did, however, argue that courts necessarily create law when deciding a case. The reason, he explained, is that judges must evaluate issues of fact or law in order to decide a case, and that evaluations are not objective. Olivecrona's line of argument is problematic, however. The problem is that Olivecrona uses the term “evaluation” in a sense that is broad (...) enough to cover not only evaluations, including moral evaluations, but also considerations that are not evaluations at all, and therefore his claim that judges must evaluate issues of law or fact in order to decide whether a case is false. (shrink)

The focus of this work is the issue of whether, and to what extent, the nature of the law is affected by politics, has been taken up by the American and Scandinavian legal realists. By the very fact of their being products of␣the socio-political conditions of the most recent century, the American and Scandinavian legal realisms are the movements that have most explicitly and systematically brought to the surface one particular characteristic phenomenon of contemporary Western legal systems: the (...) existence of two basic forces simultaneously attracting and repelling, affecting the law in its relations with the political world. (shrink)

Preparation for the Study of Theories of Law: Non-Universality of Law, Irreconcilable Epistemologies, Ideological Incipience; Theories in Metaphysical-Rational Epistemology: Divine and Prophetic Theories; Natural Law: Early Hindu, Chinese, Greek, Roman, and Modern; Theories in Idealist Epistemology; Theories in Empiricist Epistemology; Positivist: Early Hindu, Chinese, Later Bentham, Austin, Kelsen, Hart; Historical Von Savigny, Maine, Marx and Engels; Sociological Jhering, Ehrlich, Duguit, Jurisprudence of Interests, Free Law; Psychological Petrazycki; American Realist; Philosophical Framework; Expressions; Scandinavian Realist; Phenomenological; The Critical Legal Studies and (...) its Offshoots: Critical Legal Studies, Feminist Jurisprudence, Critical Race Theory; Legal Polycentricity. (shrink)

General aspects of jurisprudence -- Precursors of modern jurisprudence -- Natural law -- Transcendental idealism -- Utilitarianism -- Legal positivism -- Historical jurisprudence -- The sociological movement in jurisprudence -- Authority -- Scandinavian realism -- American realism -- Contemporary american jurisprudence -- Rights -- Law and morality -- Feminist jurisprudence.

This new edition of Jurisprudence brings the book fully up to date and incorporates the following new topics: Utilitarianism, Scandinavian realism, Feminism, Liberalism, the New Critics, and the Hart v Dworkin debate. It also includes a separate chapter on Dworkin's Law's Empire, and the previous chapter on Rights has been substantially revised, to make this a useful and highly readable addition to the student's library.

La théorie du pronostic est un des éléments les plus importants (et les plus discutés) de la théorie de la science du droit d'Alf Ross. Cet article veut montrer que cette théorie du pronostic est incompatible avec les propres fondements théoriques de Ross, et notamment avec sa théorie des sources du droit et de l'interprétation. Elle doit être comprise comme une tentative réductionniste de la validité normative, qui a échoué par son incapacité à fournir à la recherche juridique les concepts (...) qui lui sont nécessaires. (shrink)

Ross, Alf Loar, Brian, Editor.Directives and Norms. New York: Humanities Press, [1967]. ix, 188 pp. Reprint available April 2009 by The Lawbook Exchange, Ltd. ISBN-13: 978-1-58477-961-2. ISBN-10: 1-58477-961-6. Cloth with dust jacket. $65.00 * Reprint of the first American edition. One of the most interesting jurists of the post-World War II era, Ross [1899-1979] was a legal and moral philosopher, scholar of international law and the leading representative of Scandinavian Legal Realism. This book and On Law and Justice (...) (1958) are his principal works. In Directives and Norms Ross asks whether imperatives (or, to use his term, 'directives') are subject to logic in the same way as indicatives. He shows the difference between indicative and directive discourse and explains the concepts 'directive' and 'norm' as they function in the social sciences, especially in the study of law. A contemporary essay in the Modern Law Review (32:544), though critical of this work, was still impressed by its "clear and convincing account" of these processes. (shrink)

TWENTIETH-CENTURY ETHICS. AFTER NIETZSCHE -/- Preface This book tells the story of twentieth-century ethics or, in more detail, it reconstructs the history of a discussion on the foundations of ethics which had a start with Nietzsche and Sidgwick, the leading proponents of late-nineteenth-century moral scepticism. During the first half of the century, the prevailing trends tended to exclude the possibility of normative ethics. On the Continent, the trend was to transform ethics into a philosophy of existence whose self-appointed task was (...) that of describing the human condition as consisting of choices, as unavoidable as arbitrary, without any attempt at providing criteria for making such choices. In the Anglo-Saxon countries, the heir of ethics was a philosophy of morality, that is, an analysis of the language of morality that intended to clarify valuations without trying to justify them. 1958 was the year of the normative turn that led to the Rehabilitation of practical philosophy, a turn followed by decades of controversies between distinct kinds of normative ethics: utilitarian, Kantian, virtue ethics. While the controversy was raging, a quiet revolution took place, that of applied ethics which surprisingly dissolved the controversy's very subject matter by providing methods for making convergence possible on intermediate principles even when no agreement was available about first principles. The normative turn and the revolution of applied ethics have led us, at the turn of the century, to a goal that was quite far from the starting point. Instead of scepticism and relativism that was the fashion at the beginning of the century, at the beginning of the third millennium impartial and universal moral arguments seem to hold the spot being supported, if not by a final rational foundation, at least by reasonableness, the most precious legacy of the Enlightenment. -/- ● TABLE OF CONTENTS -/- ● I Anglo-Saxon philosophy: naturalism 1. Dewey beyond evolutionism and utilitarianism 2. Dewey and anti-essentialist moral epistemology 3. Dewey and naturalist moral ontology 4. Dewey and normative ethics of conduct and function 5. Perry and semantic naturalism -/- ● II Anglo-Saxon philosophy: ideal utilitarianism and neo-intuitionism 1. Moore's critique of utilitarian empiricism 2. Moore on the naturalistic fallacy 3. Moore on the nature of intrinsic value 4. Moore on ideal utilitarianism 5. Prichard on the priority of the right over the good 6. Ross's coherentist moral epistemology 7. Ross's moral ontology: realism, pluralism, and non-naturalism 8. Ross's normative ethics of prima facie duties -/- The chapter reconstructs the background of ideas, concerns and intentions out of which Moore's early essays, the preliminary version, and then the final version of Principia Ethica originated. It stresses the role of religious concerns, as well as that of the Idealist legacy. It argues that PE is more a patchwork of somewhat diverging contributions than a unitary work, not to say the paradigm of a new school in Ethics. -/- ●III Anglo-Saxon philosophy: non-cognitivism 1. The Scandinavian School, the Vienna circle and proto-emotivism 2. Wittgenstein and the ineffability of ethics 3. Russell's and Ayer's radical emotivism 4. Stevenson and moderate emotivism 5. Stevenson and the pragmatics of moral language 6. Stevenson and the methods for solving ethical disagreement 7. Hare and prescriptivism The chapter reconstructs first the discussion after Moore. The naturalistic-fallacy argument was widely accepted but twisted to prove instead that the intuitive character of the definition of 'good', its non-cognitive meaning, in a first phase identified with 'emotive' meaning. Alfred Julius Ayer is indicated as a typical proponent of such non-cognitivist meta-ethics. More detailed discussion is dedicated to Bertrand Russell's ethics, a more nuanced and sophisticated doctrine, arguing that non-cognitivism does not condemn morality to arbitrariness and that the project of rational normative ethics is still possible, heading finally to the justification of a kind of non-hedonist utilitarianism. Stevenson's theory, another moderate version of emotivism is discussed at some length, showing how the author comes close to the discovery of the role of a pragmatic dimension of language as a basis for ethical argument. A section reconstructs the discussion from the Forties about Hume's law, mentioning Karl Popper's argument and Richard Hare's early non-cognitivist but non-emotivist doctrine named prescriptivism. -/- ●IV Anglo-Saxon philosophy: critics of non-cognitivism 1. Neo-naturalism and its objections to the naturalistic fallacy argument 2. Objections to Hume's law 3. Clarence Lewis and the pragmatic contradiction 4. Toulmin and the good reasons approach 5. Baier and moral reasons 5. Baier, social moralities and the absolute morality 6. Baier and the moral point of view 7. Baier and the contents of absolute ethics -/- ● V Continental philosophy: the philosophy of values 1. Max Weber and the polytheism of values 2. Phenomenology against psychologism and rationalism 3. Reinach and the theory of social acts 4. Scheler and the material ethics of values 5. Hartmann and the ontology of values 6. Plessner, Gehlen and the Philosophische Anthropologie -/- The chapter illustrates first the idea of phenomenology and the Husserl's project of a phenomenological ethic as illustrated in his 1908-1914 lectures. The key idea is dismissing psychology and trying to ground a new science of the apriori of action, within which a more restricted field of inquiry will be the science of right actions. Then the chapter illustrates the criticism of modern moral philosophy conducted in the 1920 lectures, where the main target is naturalism, understood in the Kantian meaning of primacy of common sense. The third point illustrate is Adolph Reinach's theory of social acts as a key the grounding of norms, a view that sketches the ideas 'discovered' later by Clarence I. Lewis, John Searle, Karl-Otto Apel and Jürgen Habermas. A final section discusses Nicolai Hartman, who always refused to define himself a phenomenologist and yet developed a more articulated and detailed theory of 'values' – with surprising affinities with George E. Moore - than philosophers such as Max Scheler, who claimed to be Husserl's legitimate heirs. -/- ● VI Continental philosophy: the critics of the philosophy of values 1. Freud, the Superego and Civilization 2. Heidegger on original ethos against ethics 3. Sartre and de Beauvoir on authenticity and ambiguity 4. Adorno and Horkheimer on emancipation and immoralism -/- ●VII Post-liberal theologians and religious thinkers 1. Barth on the autonomy of faith from ethics 2. Developments of Reformed moral theology after Barth 3. Bonhoeffer on the concrete divine command and ethics of penultimate realities 4. Developments of Reformed and Catholic moral theology after world war II 5. Baeck and the transformation of liberal Judaism 6. Rosenzweig against liberal Judaism 7. Buber and religion as the vital lymph of morality 8. Heschel and Judaism as a science of actions -/- The chapter examines the main protagonists of Christian theology and Jewish religious thinking in the twentieth century. It stresses how the main dilemmas of contemporary philosophical ethics lie at the root of the various path of inquiry taken by these thinkers. -/- ● VIII Normative ethics: neo-Utilitarianism 1. The discussion on act and rule utilitarianism 2. Hare on two-tiered preference utilitarianism 3. Harsanyi, Gauthier and rational choice ethics 4. Parfit, utilitarianism and the idea of a person 5. Brandt and indirect conscience utilitarianism -/- The chapter addresses the issue of the complex process of self-transformation Utilitarianism underwent after Sidgwick's and Moore's fatal criticism and the unexpected Phoenix-like process of rebirth of a doctrine refuted. Two examples give the reader a glimpse at this uproarious process. The first is Roy Harrod Wittgensteinian transformation of utilitarianism in pure normative ethics depurated from hedonism as well as from whatsoever theory of the good. This transformation results in preference utilitarianism combined with a 'Kantian' version of rule utilitarianism. The second is Richard Hare's two-level preference utilitarianism, where act utilitarianism plays the function of the eventual rational justification of moral judgments and rule-utilitarianism that of an action-guiding practical device. -/- ● IX Normative ethics: neo-Aristotelianism and virtue ethics 1. Hannah Arendt, action and judgement 2. Hans-Georg Gadamer and phronesis 3. Alasdair MacIntyre on practices, virtues, and traditions 5. Stuart Hampshire on deliberation 6. Bernard Williams and moral complexity 7. Feminist ethics -/- Sect 1 reconstructs the post-war rediscovery of ethics by many German thinkers and its culmination in the Sixties in the movement named 'Rehabilitation of practical philosophy' is described. Heidegger's most brilliant disciples were the promoters of this Rehabilitation. Hans-Georg Gadamer is a paradigmatic example. His reading of Aristotle's lesson I reconstructed, starting with Heidegger's lesson but then subtly subverting its outcome thanks to the recovery of the significant role of the notion of phronesis. Sect 3 discusses the three theses defended by Anscombe in 'Modern Moral Philosophy'. It argues that: a) her answer to the question "why should I be moral?" requires a solution of the problem of theodicy, and ignores any attempts to save the moral point of view without recourse to divine retribution; b) her notion of divine law is an odd one more neo-Augustinian than Biblical or Scholastic; c) her image of Kantian ethics and intuitionism is the impoverished image manufactured by consequentialist opponents for polemical purposes and that she seems strangely accept it; d) the difficulty of identifying the "relevant descriptions" of acts is not an argument in favour of an ethics of virtue and against consequentialism or Kantian ethics, and indeed the role of judgment in the latter is a response to the difficulties raised by the case of judgment concerning future action. The chapter gives a short look at further developments in the neo-naturalist current trough a reconstruction of Philippa Foot's and Peter Geach's critiques to the naturalist-fallacy argument and Alasdair MacIntyre's grand reconstruction of the origins and allegedly inevitable failure of the Enlightenment project of an autonomous ethic. -/- ● X Normative ethics: Kantian and rights-based ethics 1. Dialogical constructivism 2. Apel, Habermas and discourse ethics 3. Gewirth and rights-based ethics 4. Nagel on agent-relative reasons 5. Donagan and persons as ends in themselves Parallel to the neo-Aristotelian trend, there was in the Rehabilitation of practical philosophy a Kantian current. This current started with the discovery of the pragmatic dimension of language carried out by Charles Peirce and the Oxford linguistic philosophy. On this basis, Karl-Otto Apel singled out as the decisive proponent of the linguistic and Kantian turn in German-speaking ethics, worked out the performative-contradiction argument while claiming that this was able to provide a new rational and universal basis for normative ethics. The chapter offers an examination of his argument in some detail, followed by a more cursory reconstruction of Jürgen Habermas's elaboration on Apel's theory. -/- ● XI The applied ethics renaissance 1. Elisabeth Anscombe on the atom bomb 2. From medical ethics to bioethics 3. Rawls and public ethics 3. Nozick, Dworkin and further developments of public ethics 5. Sen and the revival of economic ethics -/- The chapter presents the revolution of applied ethics while stressing its methodological novelty, exemplified primarily by Beauchamp and Childress principles approach and then by Jonsen and Toulmin's new casuistry. The chapter argues that Rawls's distinction between a "political" and a "metaphysical" approach to the theory of justice, one central part of ethical theory, is a formulation of the same basic idea at the root of both the principles approach and the new casuistry, both discussed in the following chapter. The idea is that it is possible to reach an agreement concerning positive moral judgments even though the discussion is still open – and in Rawls' view never will be close – on the essential criteria for judgment. -/- ● XII Fin-de-siècle metaethics 1. Deontic logics 2. Anti-realism 3. External realism 4. Internal realism 5. Kantian constructivism -/- The chapter illustrates the fresh start of meta-ethical discussion in the Eighties and Nineties and the resulting new alignments: metaphysical naturalism, internal realism, anti-realism, and constructivism. (shrink)

Reprint of the first American edition. One of the most interesting jurists of the post-World War II era, Ross [1899-1979] was a legal and moral philosopher, scholar of international law and the leading representative of Scandinavian Legal Realism. This book and On Law and Justice (1958) are his principal works. In Directives and Norms Ross asks whether imperatives (or, to use his term, 'directives') are subject to logic in the same way as indicatives. He shows the difference between (...) indicative and directive discourse and explains the concepts 'directive' and 'norm' as they function in the social sciences, especially in the study of law. A contemporary essay in the Modern Law Review (32:544), though critical of this work, was still impressed by its "clear and convincing account" of these processes. (shrink)

Common Sense and Logic in Jan Smedslund's 'Psycho-logic'. This paper is about the efforts the norwegian psychologist Jan Smedslund made in analyzing and checking philosophically his theory called 'Psycho-logic'. I am going to reconstruct and discuss the debates between Smedslund and several critics, which have been going on since about 1978, mainly in the "Scandinavian Journal of Psychology". A result will be that the kind of modal logics Smedslund uses - a type with realistic semantics and epistemology - is (...) not the proper one for the analysis of 'Psycho-logic'. (shrink)

The first two volumes of the collection are devoted primarily to analytical legal theory--in particular, theories about the nature of law. This is the idea of legal philosophy most familiar to jurisprudential students in the English-speaking world, and many of the civil-law countries. The last two volumes sample schools and theorists who mostly come from outside the analytical tradition, and who are, in one sense or another, critical theorists--theorists more interested in offering systematic critiques of law or general prescriptions. The (...) four volumes of the collection are divided into six parts. Part one brings together key work on the methodology of analytical philosophy and Part two collects the most important scholarship on forms of legal positivism, including material in the Austin-Hart tradition, 'inclusive vs. exclusive legal positivism' and Kelsenian legal positivism. Part three ('Critics of Legal Positivism') gathers material in the natural-law tradition; the work and influence of Lon Fuller and Ronald Dworkin are also fully explored here. Parts four to six are an assembly of the best and most important thinking by and about normative and critical theorists working outside the analytical tradition. Part four gathers material under the rubric of legal realism, exploring both the American and Scandinavian schools as well as their predecessors. Part five examines one of the most influential movements in modern legal theory and legal practice: known as 'law and economics' or the 'economic analysis of law', this approach has come to dominate American scholarship, and its role is growing in other countries too. Finally, part six makes available key research on a variety of critical theories of law that have grown up around systematic critiques of Western legal systems. Included here is work by the American legal realists, as well as work by feminists and scholars pursuing critical race theory. The intersection of law and literature is also examined, as are other approaches to law and legal theory: Habermas's 'proceduralist paradigm'; the concept of 'autopoiesis'; and the work of Rorty and Fish. This Routledge Major Work illustrates the many ways in which philosophical methods and theories have been used to explore aspects of law and legal practice, and with a comprehensive introduction, newly written by the editor, which places the collected material in its historical and intellectual context, Philosophy of Law is an essential collection destined to be valued by scholars and students as a vital research resource."--Publisher's website. (shrink)

This paper is about the efforts the norwegian psychologist Jan Smedslund made in analyzing and checking philosophically his theory called ‘Psycho-logic’. I am going to reconstruct and discuss the debates between Smedslund and several critics, which have been going on since about 1978, mainly in the “Scandinavian Journal of Psychology”. A result will be that the kind of modal logics Smedslund uses — a type with realistic semantics and epistemology — is not the proper one for the analysis of (...) ‘Psycho-logic’. (shrink)

The paper deals with certain issues with which Olivecrona was mainly concerned in his Philosophy of Law, notably (i) his views about the logical or syntactical form of imperatives as used in the law, and (ii) his views on the semantics of imperatives in the law and on the question whether and to what extent the notions of truth and falsity are applicable to those imperatives at all. In the light of an important critical notice of Olivecrona's work by Marc-Wogau (...) (1940 ), we examine some textual evidence for attributing to Olivecrona a so-called Atheoretical Thesis to the effect that imperatives in the law are neither true nor false or lack truth-value altogether. We close the paper by commenting on the celebrated distinction due to Hedenius (1941 ) and further elaborated by Wedberg (1951 ) between genuine ("rule-stating") normative sentences in the law and spurious ones (stating merely that a given rule is (or is not) in force in a given society at a given time). Two interesting difficulties bound up with that distinction will be dealt with. By means of various quotations we try to capture something of the flavour characterizing the legal philosophical discussion in Sweden in the mid-twentieth century during la belle époque of Scandinavian Legal Realism of which Olivecrona was a typical representative. (shrink)

The impact of Rawls's work in the Nordic countries has been wider than expected. The first section identifies some legal, political, and cultural features that would lead us to expect little interest in Rawls's work: Scandinavian legal realism, the social democratic welfare state regimes, and pervasive ethnic and cultural homogeneity. The second section gives an overview of the reception of Rawls's work, both in the academy and in public fora, on the basis of extensive but not exhaustive searches. (...) The third section offers some conclusions and speculates that Rawlsian contributions - and political philosophy in general - will increase, largely due to Europeanization. Appendix 1 provides bibliographical information about first translations and presentations of Rawls's work starting with the 1955 article `Two Concepts of Rules'. Appendix 2 lists appeals to Rawls's work in the academy and the public sphere, ranging from the substantive principles of Justice as Fairness stated in 1971 through the Law of Peoples (1999). Neither appendix claims to give exhaustive accounts. (shrink)

Contents: LEGAL THEORY 1. Reflections on law in context / William Twining -- 2. Are omissions less culpable? / Tony Honore -- 3. Scandinavian legal realism in the law of contract / Jan Hellner -- 4. Statutes and contracts as founts of formal reasoning / Robert S. Summers -- 5. Conceptions of public policy / John Bell LEGAL HISTORY 6. Aftermath / Paul D. Carrington -- 7. The role of the judiciary: lessons from the end of empire / (...) Robert Stevens -- 8. The Origins of futures trading in the Liverpool Cotton Market COMMON LAW 9.payment undertakings / Roy Goode -- 10. Pre-contractual duties of disclosure / S.M. Waddams -- 11. Three problems with the new product liability / Jane Stapleton -- 12. Evaluating the goals of personal injury law: some empirical evidence / Donald Harris -- 13. Negligence and economic loss / John Dwyer -- 14. Libel and constitutional free speech / John Fleming -- 15. The basis of tortious liability / Peter Cane. (shrink)

Like Buddhism, environmental ethics encompasses a wide variety of approaches, positions, and traditions. The seminal works of the field most of which were written by North Americans, Scandinavians, and Australians often gave the impression that environmental ethics is primarily about our moral relations with the wilder parts of the biosphere. In certain respects, the ecological conception of the world chimes with the worldview of early Buddhism. First, that worldview of the Buddhism is in one sense of the term, naturalistic. Second, (...) the worldview of early Buddhism is holistic. In environmental ethics, for its part, nature is often contrasted with the human or human‐made world rather than with the supernatural. One way to consider the relations between Buddhist philosophy and environmental ethics is to ask what value Buddhist philosophical traditions have attributed to or, for theorists of a realist inclination, discovered in nature. (shrink)

This article develops a model first proposed in my book Jurisprudence and communication [67]. It takes as its starting point the generally conception that legal rules are valid norms, involving a normative content and expressing themselves in reality through observable conduct. This dualistic character of law is central. Law is both fiction and factual, ideal and real. But the viewpoint that a legal rule is a manifestation of validity in reality, through empirical acts, raises the question how rules as (valid) (...) fictions can be known and understood in their linguistic form. How is meaning attributed to the legal words and how do these words relate to the world of fact? Taking an institutional-pragmatic approach as a starting point, an analytical model is created that can be used as an instrument for the relationship between legal rules as thought objects existing only in the mind, and legal rules as observable conduct. This model seeks to revise the classical models of legal communication that basically focus on the unilateral flow of legal information between ‘senders and receivers’ and their claim of linear causality between rules and conduct. The model here constructed in the theoretical part is then applied to several case studies, in order to analyze the construction of meaning in actual use. Two fundamental rights—the older codified in 1798 and the more recent codified in 1983—in the Dutch Constitution have been analyzed using the model as an instrument. Further, the remarkable shifts in article 96 of the Constitution, the declaration of war, and its consequences, resulting in a new category of war—the armed conflict—have been analyzed, as well as the phenomenon of ‘peacekeeping missions’ involving actual warfare. The new war terminology has created vagueness with respect to the clear-cut division between war and peace, which has been reflected in several cases before Court, including the Eric O. case. The present analysis of the case studies indicates that the model was not in all cases completely tailored to the facts: for example, in the case study on article 96 a broad spectrum of observable legal and non-legal actors dominated the facts in such a way that the model did not fully cover it. The observations on my book by the three respondents in this special issue have contributed to the adaptation and extension of the model. In the Postscript my responses suggest some ways in which their ideas can be implemented. (shrink)

According to First-Person Realism, one's own first-person perspective on the world is metaphysically privileged in some way. After clarifying First-Person Realism by reference to parallel debates in the metaphysics of modality and time, I survey eight different arguments in favor of First-Person Realism.

After 1989, capitalism has successfully presented itself as the only realistic political-economic system - a situation that the bank crisis of 2008, far from ending, actually compounded. The book analyses the development and principal features of this capitalist realism as a lived ideological framework. Using examples from politics, films, fiction, work and education, it argues that capitalist realism colours all areas of contemporary experience. But it will also show that, because of a number of inconsistencies and glitches internal (...) to the capitalist reality program capitalism in fact is anything but realistic. (shrink)

In prior work, we have argued that spacetime functionalism provides tools for clarifying the conceptual difficulties specifically linked to the emergence of spacetime in certain approaches to quantum gravity. We argue in this article that spacetime functionalism in quantum gravity is radically different from other functionalist approaches that have been suggested in quantum mechanics and general relativity: in contrast to these latter cases, it does not compete with purely interpretative alternatives, but is rather intertwined with the physical theorizing itself at (...) the level of quantum gravity. Spacetime functionalism allows one to articulate a coherent realist perspective in the context of quantum gravity, and to relate it to a straightforward realist understanding of general relativity. (shrink)

What is the point of ideology critique? Prominent Anglo-American philosophers recently proposed novel arguments for the view that ideology critique is moral critique, and ideologies are flawed insofar as they contribute to injustice or oppression. We criticize that view and make the case for an alternative and more empirically-oriented approach, grounded in epistemic rather than moral commitments. We make two related claims: (i) ideology critique can debunk beliefs and practices by uncovering how, empirically, they are produced by self-justifying power, and (...) (ii) the self-justification of power should be understood as an epistemic rather than moral flaw. Drawing on the recent realist revival in political theory, we argue that this genealogical approach has more radical potential, despite being more parsimonious than morality-based approaches. We demonstrate the relative advantages of our view by discussing the results of empirical studies on the contemporary phenomenon of neopatriarchy in the Middle East and North Africa. (shrink)