This book provides a selective and somewhat cheeky account of prominent positions in legal theory, such as American legal realism, modern legal positivism, sociological systems theory, institutionalism and critical legal studies. It presents a relational approach to law and a new perspective on legal sources. The book explores topics of legal theory in a playful manner. It is written and composed in a way that refutes the widespread prejudice that legal theory is a dreary subject, with a cast of characters (...) that occasionally interact in order to illustrate the claims of the book. Legal experts claim to know what the law is. Legal theory-or jurisprudence-explores whether such claims are warranted. The discipline first emerged at the turn of the 20th century, when the self-confidence of both legal scholarship and judicial craftsmanship became severely shattered, but the crisis continues to this day. (shrink)

Originally the constitution was expected to express and channel popular sovereignty. It was the work of freedom, springing from and facilitating collective self-determination. After the Second World War this perspective changed: the modern constitution owes its authority not only to collective authorship, it also must commit itself credibly to human rights. Thus people recede into the background, and the national constitution becomes embedded into one or other system of 'peer review' among nations.This is what Alexander Somek argues is (...) the creation of the cosmopolitan constitution. Reconstructing what he considers to be the three stages in the development of constitutionalism, he argues that the cosmopolitan constitution is not a blueprint for the constitution beyond the nation state, let alone a constitution of the international community; rather, it stands for constitutional law reaching out beyond its national bounds. This cosmopolitan constitution has two faces: the first, political, face reflects the changed circumstances of constitutional authority. It conceives itself as constrained by international human rights protection, firmly committed to combating discrimination on the grounds of nationality, and to embracing strategies for managing its interaction with other sites of authority, such as the United Nations. The second, administrative, face of the cosmopolitan constitution reveals the demise of political authority, which has been traditionally vested in representative bodies. Political processes yield to various, and often informal, strategies of policy co-ordination so long as there are no reasons to fear that the elementary civil rights might be severely interfered with. It represents constitutional authority for an administered world. (shrink)

According to Immanuel Kant, legality means the quality of an action being merely and simply in conformity with a law. The article defends the significance of this notion and explains how it indicates the existence of a legal relation. The legal relation, in turn, is the result of resolving an antinomy between the social and the substantive dimension of moral judgment.

In an age of widespread cutbacks on social spending, the prospects of social policy generally appear to be grim. If noticeable progress has been recently made in the European Union, then it is in regard to rooting out discrimination. Indeed, anti-discrimination law and policy appears to be the one sphere of social policy whose success is causally connected to the European Union. But how successful can anti-discrimination law be? This book uses legal analysis in order to expose the intrinsic shortcomings (...) of common approaches. Anti-discrimination law fails to provide adequate legal guidance and therefore invites constant supplementation by pedagogical projects of social engineering. This book offers a genuinely leftist critique on anti-discrimination law, and concludes with a discussion of alternative models of solidarity in the Union. (shrink)

What is law? The usual answer is that the law is a system of norms. But this answer gives us at best half of the story. The law is a way of relating to one another. We do not do this as lovers or friends and not as people who are interested in obtaining guidance from moral insight. In a legal context, we are cast as 'character masks', for example, as 'buyer' and 'seller' or 'landlord' and 'tenant'. We expect to (...) have our claims respected simply because the law has given us rights. We do not want to give any other reason for our behavior than the fact that we have a legal right. Backing rights up with coercive threats indicates that we are willing to accept legal obligations unwillingly. This book offers a conceptual reconstruction of the legal relation on the basis of a critique of legal positivism. (shrink)

This book presents an original picture of the legitimacy underlying the European Union. Drawing on ancient and modern political philosophy, the book argues that the transnational regime is rooted in an individualist social and intellectual culture, and depends on an apolitical, isolated citizenship.

In this article it is argued that Jhering’s conception of legal formality, which became notorious for being the most extreme expression of conceptualism, makes sense if it is recast as a theory of rights. It is from this vantage point that Jhering’s later methodological self‐critique becomes intelligible in which he mitigated the strains of conceptual constructivism by reflecting on the value of choice granted by a system of rights.

§1. I consider myself blessed with receiving such kind and sympathetic critiques. All authors have taken it upon themselves to make sense of an enterprise that combines a historical account of juri...

This chapter contains sections titled: Nineteenth‐Century Idealism From Idealism to Nineteenth‐Century Constructivism: The Case of the Historical School From the Turn of the Century to World War II: Disintegration and Reconstruction The Period from 1933 to 1945: “Völkische” Jurisprudence The Period from 1945 to the Present: From Natural Law to Postmodernism References.

Modern legal positivism tries to preserve the normativity of law while abstaining from generally viewing positive laws as reasons for action. This effort is epitomised, in particular, in Raz' idea that the substance of positive law can be imparted from the detached perspective of the ‘legal man’. From that perspective, it is not stated what one ought to do, all things considered, but merely what one ought to do from the legal point of view. The first part of this article (...) shows that the problem that the introduction of the ‘legal man’ is supposed to solve originates from an assimilation of Kelsen's legal positivism to ‘common sense’. The embrace of ‘common sense’, however, divests modern legal positivism of its critical edge. The second part of the article offers both a reductio ad absurdum of a conventionalist understanding of the ‘legal man’ and an analysis of legal knowledge that abstains from exploring its claim to validity. Legal knowledge of that type embraces bitter irony. (shrink)

Historically, the connection between law and practical reason has been subject to at least two expositions. According to the first, the law is the deposit of the moral reasons people have to create a set of institutions. The existence of law is, thus understood, a consequence of potentially universal reasons for action (and a wellspring of further such reasons). Alternately, practical reason can be seen as relevant to positive law in the dual role to limit the tolerable content of positive (...) law and to explain the significance of moral arguments in legal reasoning. The article explores a third perspective that views the emergence of the legal relation as a consequence of the self-critique of practical reason. (shrink)

The concept of law presupposes the concept of the legal relationship. Law authorizes, potentially or actually, the use of coercion in order to guarantee freedom from interference by others. But coercive norms also constitute internal negative liberty for their addressees. A legal obligation cannot require adopting, let alone endorsing, the internal perspective of the law-giver. Legal subjects remain strangers to one another. Reconciling legality with autonomy involves, therefore, conceiving of one′s self-determination from the perspective of someone whose reasoning remains ultimately (...) secluded from others. Realizing this type of relation to oneself gives rise to the ethical legal obligation to assert oneself as a morally self-reliant individual. (shrink)

Hans Kelsen’s claim that the state and the law are identical is surrounded by a somewhat mystical air. Yet, the ‘identity thesis’ loses much of its mystical aura when it is seen as an attempt to recast the state, qua social fact, in deontological terms. The state is seen as a condition necessary to account for the validity of legal acts. Indeed, the meaning of the state is reduced to the function performed by a conception of order in the reproduction (...) of a system of norms. No further social fact would attest to its existence. From a sociological point of view, all law is essentially, and principally, law sans state. (shrink)

La 4e de couverture indique : "The common good and how it can be pursued is a contested question in every polity. It touches upon the core principles of a society and shapes political debates and processes, institutional logics and constitutional settings. The nature and potential finality of the European integration project cannot be understood without taking the question into account. Despite the success story of European integration, it is still an open question wether the Union is in fact more (...) than the sum total of fragmentary compromises between and among the Member states. Is there a European Common Good beyond peace? The current controversies over collective responsibilities and values that surfaced in the financial crisis make a discussion of the common good within the European context compelling.". (shrink)

volume 1: Legal positivism, institutionalism and globalisation -- volume 2: Normativism and anti-normativism in law.

Some combinations of attitudes--of beliefs, credences, intentions, preferences, hopes, fears, and so on--do not fit together right: they are incoherent. A natural idea is that there are requirements of "structural rationality" that forbid us from being in these incoherent states. Yet a number of surprisingly difficult challenges arise for this idea. These challenges have recently led many philosophers to attempt to minimize or eliminate structural rationality, arguing that it is just a "shadow" of "substantive rationality"--that is, correctly responding to one's (...) reasons. -/- In *Fitting Things Together*, Alex Worsnip pushes back against this trend--defending the view that structural rationality is a genuine kind of rationality, distinct from and irreducible to substantive rationality, and tackling the most important challenges for this view. In so doing, he gives an original positive theory of the nature of coherence and structural rationality that explains how the diverse range of instances of incoherence can be unified under a general account, and how facts about coherence are normatively significant. He also shows how a failure to focus on coherence requirements as a distinctive phenomenon and distinguish them adequately from requirements of substantive rationality has led to confusion and mistakes in several substantive debates in epistemology and ethics. -/- Taken as a whole, Fitting Things Together provides the first sustained defense of the view that structural rationality is a genuine, autonomous, unified, and normatively significant phenomenon. (shrink)

Das Bild vom glaubwürdigen Wissenschaftler? vom Universalgelehrten der Renaissance zu modernen Laborspezialist*innen - ist ein kulturelles Konstrukt, das die Ansprüche seiner Zeit widerspiegelt. Wie es entsteht, wird im Galvanismusdiskurs um 1800 deutlich.Dieser Band beschäftigt sich mit den Fragen: Wer gilt um 1800 als Naturwissenschaftler? Wie findet man als junger Forscher Aufnahme in die wissenschaftliche Gemeinschaft? Und worin manifestieren sich die wissenschaftskulturellen Unterschiede in Deutschland und Großbritannien zu Beginn des 19. Jahrhunderts? Anhand der frühen Publikationen der jungen aufstrebenden Naturforscher Alexander (...) von Humboldt, Johann Wilhelm Ritter und Christian Heinrich Pfaff sowie ihrer britischen Kollegen untersucht der Autor die Konstruktion vom modernen Naturwissenschaftler durch die wissenschaftliche Gemeinschaft. (shrink)

Western societies today are coming unmoored in the face of an earth-shaking ethical and cultural paradigm shift. At its core is the question of what it means to be human and how we are meant to live. The old answers are no longer accepted; a dizzying array of options are offered in their stead. Underpinning this smorgasbord of lifestyles is a thicket of unquestioned assumptions, such as the separation of gender from biological sex, which not so long ago would have (...) been universally rejected as radical notions. In the spring of 2019, a group of Orthodox Christian scholars drawn from a wide variety of academic disciplines met together to offer responses to the moral crisis our generation faces, elaborating upon its various forms and facilitating a fuller understanding of some of its theological and philosophical foundations. In doing so they offer support to all those who question the claims that are so forcefully insisted upon today--a clarity that will aid them in standing up and resisting trends that have already shown to be the cause of great suffering and unhappiness. (shrink)

Internalism about a person's good is roughly the view that in order for something to intrinsically enhance a person's well-being, that person must be capable of caring about that thing. I argue in this paper that internalism about a person's good should not be believed. Though many philosophers accept the view, Connie Rosati provides the most comprehensive case in favor of it. Her defense of the view consists mainly in offering five independent arguments to think that at least some form (...) of internalism about one's good is true. But I argue that, on closer inspection, not one of these arguments succeeds. The problems don't end there, however. While Rosati offers good reasons to think that what she calls 'two-tier internalism' would be the best way to formulate the intuition behind internalism about one's good, I argue that two-tier internalism is actually false. In particular, the problem is that no substantive theory of well-being is consistent with two-tier internalism. Accordingly, there is reason to think that even the best version of internalism about one's good is in fact false. Thus, I conclude, the prospects for internalism about a person's good do not look promising. (shrink)

Any serious student attempting to better understand the nature, methods, and justification of science will value Alex Rosenberg's and Lee McIntyre's updated and substantially revised Fourth Edition of Philosophy of Science: A Contemporary Introduction. Weaving lucid explanations with clear analyses, the volume is as a much-used, thematically-oriented introduction to the field.

Comment developper une phenomenologie de la connaissance qui, tout en restant fidele aux perspectives fondamentales des deux peres fondateurs de la phenomenologie, tire profit des acquis essentiels des deux generations posterieures de phenomenologues? L'auteur se propose de poursuivre le projet d'une refondation de la phenomenologie qui prend au serieux les critiques du fondationalisme (traditionnel) sans pour autant abandonner une perspective visant a legitimer le bien-fonde de tout discours exhibant le sens de ce qui apparait. La these fondamentale est qu'une telle (...) refondation se doit de mettre en son centre non plus la perception objectivante, mais l'imagination (Einbildungskraft) a la source de toute formation ou configuration du sens (Sinnbildung), laquelle constitue la base de tout apparaissant et de tout evenement. L'imagination est ici comprise a la fois comme devoilant la constitution imageante (imaginaire et imaginal) du reel et comme productrice d' images (ou d' icones ) dont il s'agit de preciser la dimension genetique, voire generative, eu egard a plusieurs concepts determinants de la phenomenologie (tels que la verite, la subjectivite, le reel, l' inconscient, le temps, l' espace, etc.). (shrink)

The God of Jesus -- The nature of God: an unanswerable question? -- The nature of God in Christian tradition -- And our God?

This dissertation examines the theory of perceptual cognition laid out by the 7th century Buddhist scholar, Dharmakīrti, in his magnum opus, the Pramāṇavārttika. Like most theories of perception, both ancient and modern, the sensory cognition of ordinary objects is a topic of primary concern. Unlike other theorists, however, Dharmakīrti advances a technical definition of “perception” as a cognition which is both nonconceptual and non-erroneous. Dharmakīrti’s definition of perception is thereby deliberately inclusive of three additional types of “perceptual” cognition, in addition (...) to veridical sensory awareness: the nonconceptual mental apprehension of an immediately-preceding cognition (“mental perception”), the vivid appearance of soteriologically efficacious objects of contemplative practice (“yogic perception”), and the sheer unmediated presence of the contents of cognition—whatever these might be—to the cognizing mind (“reflexive awareness”). Through the logical examination of what it means to be aware of an object, Dharmakīrti demonstrates that the awareness of an object is just the awareness of a phenomenal form or cognitive image produced by that object. Pursuing this analysis further, however, Dharmakīrti argues that the very notion of an object of cognition that exists “externally” or outside the mind is incoherent. Additionally, Dharmakīrti maintains that the phenomenological structure of subject and object—that is, the “first-personal” sense of one’s own cognitions as pertaining to oneself (“for-me-ness”), together with the inseparably concomitant sense that the objects of cognition exist “out there” in an extramental world—is strictly a form of cognitive error. Therefore, because ordinary sensory cognition is inherently structured by this subject-object duality, ordinary sensory cognition must in the final analysis be understood as erroneous. According to Dharmakīrti, in other words, ultimately only the nondual “luminosity” of reflexive awareness is genuinely perceptual, because only reflexive awareness is undistorted by nature. In this way, Dharmakīrti’s epistemology provides a theoretical foundation for the advanced nondual contemplative practices of Indian and Tibetan Buddhism, particularly Mahāmudrā and rDzogs chen. (shrink)

In the paper, a detailed analysis of some new logical aspects of Cantor’s diagonal proof of the uncountability of continuum is presented. For the first time, strict formal, axiomatic, and algorithmic definitions of the notions of potential and actual infinities are presented. It is shown that the actualization of infinite sets and sequences used in Cantor’s proof is a necessary, but hidden, condition of the proof. The explication of the necessary condition and its factual usage within the framework of Cantor’s (...) proof makes, Cantor’s proof invalid. It’s shown that traditional Cantor’s proof has a second necessary, but hidden as well, condition which is teleological by its nature, i.e., is not mathematical. The explication of the second necessary condition makes Cantor’s statement on the uncountability of continuum unprovable from the point of view of classical logic.One of the most dramatic facts in history of science is connected just with the notion of actual infinity and consists in the following. On the one hand, Aristotle, Berkeley, Locke, Descartes, Spinoza, Gauss, Kant, Cauchy, Kronecker, Hermite, Poincaré, Bair, Borel, Brouwer, Quine, Wittgenstein, Weyl, Luzin, and a lot of other outstanding creators of classical logic and classical mathematics, during millenniums, stated categorically and insistently warned about that the actual infinity is a self-contradictory notion and its usage in mathematics is inadmissible (e.g., according to Poincare, “There is no actual infinity. - Cantorians forgot that and fell into contradictions. Later generations will regard Mengenlehre (set theory) as a disease from which one has recovered”). On the other hand, a lot of outstanding scientists of the XX c.c., such as Hilbert, Church, Turing, Gödel, etc., and modern axiomatic set theory as a whole ignored this (intuitive though) opinion of genii and accepted Cantor’s “transfinite paradise”, based on the actual infinity. In the paper some logical, philosophical, and psychological aspects of this historical “favorable opposition” are analyzed, and the fact that the scientific intuition of genii has won the historical battle against the mytho-’logic’ of Cantor’s transfinite ‘paradise’ is explained and logically justified. (shrink)

I argue that an adequate understanding of the practice of constructing models in physics requires a distinction between two strategies that are commonly both labeled ‘idealization’. The formal characteristic of both methods is to let a parameter in the equations for a target system go to zero. But the discussion of examples from various applications of perturbation theory shows that there is in general a difference with respect to the aims such limiting procedures are supposed to serve; and with different (...) aims comes the need to characterize the means (the interpretation of the limits) differently. I therefore suggest that we distinguish ‘idealizations’ from ‘perspectives’ or perspectival representations. (shrink)

Das Phänomen des Amateurkünstlers und Dilettanten zählt zu den bisher kaum beachteten Gegenständen der kunsthistorischen Forschung. Das Werk dieser Schaffenden darf gleichwohl als ein entscheidender Beitrag zur Kunst- und Künstlergeschichte des 18. Jahrhunderts verstanden werden. Unter einem Dilettanten versteht man gemeinhin einen Laien und Stümper, welcher dem Metier, in dem er sich versucht, eher Schaden als Nutzen bringt. Dabei wird ausser Acht gelassen, dass sich künstlerisch begabte Personen vor allem deshalb als Dilettanten bezeichneten, um sich vom professionellen Künstler abzugrenzen. Dilettieren (...) wurde als eine dem Adel vorbehaltene exklusive Form der Kunstausübung verstanden, die sich weder finanziellen Interessen noch dem Geschmack eines grösseren Publikums unterwerfen musste und sich somit kreative Freiräume ermöglichte. (shrink)