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  1.  38
    The concept of legal competence: an essay in conceptual analysis.Torben Spaak - 1994 - Brookfield, Vt.: Dartmouth Pub. Co..
    Explains the concept of legal competence (or power). This book then discusses the analysis and definition of legal concepts in general; the relation between the concept of competence and (in)validity; what it means to exercise competence; different types of competence; and competence norms.
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  2.  23
    Kelsen’s Metaethics.Torben Spaak - 2022 - Ratio Juris 35 (2):158-190.
    In this article, I argue,inter alia, that Kelsen’s mature view—as expressed in, and around the time of, the second edition ofReine Rechtslehre—was that of a metaethical relativist, and that the commitment to metaethical relativism was the reason why Kelsen defended democracy as well as tolerance in the shape of a constitutionally guaranteed freedom of thought. I also consider the possibility that in his post‐1960 phase Kelsen abandoned metaethical relativism for moral fictionalism, but argue that, on the whole, a relativist interpretation (...)
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  3.  37
    Legal positivism, conventionalism, and the normativity of law.Torben Spaak - 2018 - Jurisprudence 9 (2):319-344.
    ABSTRACTThe aim of this article is to see whether we can account for the normativity of law within the framework of legal positivism and whether the idea of a social convention could be of help in this endeavour. I argue, inter alia, that we should distinguish between the problem of accounting for the normativity of law, conceived as a necessary property of law, and the problem of accounting for the use of normative legal language on the part of legal actors; (...)
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  4.  35
    Alf Ross on the Concept of a Legal Right.Torben Spaak - 2014 - Ratio Juris 27 (4):461-476.
    In this article, I discuss Alf Ross's claim that the concept of a legal right is best understood as a technical tool of presentation, which ties together a disjunction of operative facts and a conjunction of legal consequences, and that rights statements render the content of a number of legal norms in a convenient manner. I argue that while Ross's analysis is appealing, it is problematic in at least three respects. I also argue, however, that despite these difficulties Ross's analysis (...)
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  5.  93
    Legal Positivism, Law's Normativity, and the Normative Force of Legal Justification.Torben Spaak - 2003 - Ratio Juris 16 (4):469-485.
    In this article, I distinguish between a moral and a strictly legal conception of legal normativity, and argue that legal positivists can account for law's normativity in the strictly legal but not in the moral sense, while pointing out that normativity in the former sense is of little interest, at least to lawyers. I add, however, that while the moral conception of law's normativity is to be preferred to the strictly legal conception from the rather narrow viewpoint of the study (...)
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  6.  79
    Karl Olivecrona's Legal Philosophy. A Critical Appraisal.Torben Spaak - 2011 - Ratio Juris 24 (2):156-193.
    I argue in this article (i) that Karl Olivecrona's legal philosophy, especially the critique of the view that law has binding force, the analysis of the concept and function of a legal rule, and the idea that law is a matter of organized force, is a significant contribution to twentieth century legal philosophy. I also argue (ii) that Olivecrona fails to substantiate some of his most important empirical claims, and (iii) that the distinction espoused by Olivecrona between the truth and (...)
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  7.  8
    A Critical Appraisal of Karl Olivecrona's Legal Philosophy.Torben Spaak - 2014 - Cham: Imprint: Springer.
    This book offers a critical appraisal of Karl Olivecrona's legal philosophy. Based on Olivecrona's critique of the view that law has binding force, the analysis of the concept and function of a legal rule, and the idea that law is a matter of organized force, the book argues that Olivecrona's legal philosophy is a unique contribution to twentieth century legal philosophy. It shows how Olivecrona's philosophy can be used in the assessment of contemporary theories of law, such as those put (...)
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  8.  11
    „Law's Normativity and Legal Justification “.Torben Spaak - 2003 - Ratio Juris 16 (4):469-485.
  9.  45
    Norms that Confer Competence.Torben Spaak - 2003 - Ratio Juris 16 (1):89-104.
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  10.  17
    Reasons Holism and the Shared View of Precedent.Torben Spaak - unknown
    Although the Common Law model of precedent and the Civil Law model of precedent differ in certain respects, they are also similar in important respects. In this chapter, I discuss the question of whether the common core of these models, which I call the shared view, can be squared with a theory called reasons holism. I argue (1) that if the usual reasons for following precedent are genuine, then any of these reasons may favor following precedent in some situations, but (...)
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  11.  31
    Realism about the Nature of Law.Torben Spaak - 2017 - Ratio Juris 30 (1):75-104.
    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 (...)
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  12.  20
    Karl Olivecrona on Judicial Law‐Making.Torben Spaak - 2009 - Ratio Juris 22 (4):483-498.
    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 (...)
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  13.  56
    Karl Olivecrona on judicial law-making.Torben Spaak - 2009 - Ratio Juris 22 (4):483-498.
    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 (...)
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  14.  90
    Naturalizing jurisprudence – by Brian Leiter.Torben Spaak - 2008 - Theoria 74 (4):352-362.
  15.  39
    Realism about the Nature of Law.Torben Spaak - 2016 - Ratio Juris 29 (4).
    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 (...)
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  16.  39
    Schauer's Anti‐Essentialism.Torben Spaak - 2016 - Ratio Juris 29 (2):182-214.
    In his new book, The Force of Law, Frederick Schauer maintains that law has no necessary properties, and that therefore jurisprudents should not assume that an inquiry into the nature of law has to be a search for such properties. I argue, however, that Schauer's attempt to show that legal anti-essentialism is a defensible position fails, because his one main argument is either irrelevant or else incomplete, depending on how one understands it, and because the other main argument is false.
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  17.  28
    Legal Philosophy and the Study of Legal Reasoning.Torben Spaak - 2021 - Belgrade Law Review 69 (4).
    In this short paper, I argue that legal philosophers ought to focus more than they have done so far on problems of legal reasoning. Not only is this a field with many philosophically interesting questions to consider, but it is also, in my estimation, the field in which legal philosophers can contribute the most to both the study and the practice of law. For even though reasoning and interpretation are at the center of what legal practitioners and legal scholars do, (...)
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  18.  29
    Animal Law : Human Duties or Animal Rights?Torben Spaak - 2021 - In Lydia Lundstedt (ed.), Animal Law and Animal Rights.
    In my view, the moral case for giving animals legal protection is strong. This is so whether or not we think of animals as having moral rights, such as a right to be cared for, or at least a right not to be harmed, because even if animals do not have moral rights, humans have moral duties toward animals, such as a general duty not to harm animals, say, by performing experiments on them, or raising them for food, or having (...)
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  19.  10
    The Authoritative Intention Thesis.Torben Spaak - unknown
    Joseph Raz defends the authoritative intention thesis, which has it that to the extent that law derives from deliberate law-making, its interpretation should reflect the intention of the law-maker. The idea is that as a matter of conceptual necessity, if one follows legislation, then one interprets the relevant piece of legislation in such a way that it reflects the intention of the law-maker. Raz’s position, then, is that legal content (as well as form) that is the result of deliberate law-making (...)
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  20. Introduction.Torben Spaak & Patricia Mindus - 2021 - In The Cambridge Companion to Legal Positivism. New York, NY: Cambridge University Press.
     
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  21.  29
    Kelsen on Monism and Dualism.Torben Spaak - 2013 - In Marko Novakovic (ed.), Basic Concepts of Public International Law: Monism and Dualism.
    Kelsen defends monism, that is, the view that international law and the various state legal systems taken together constitute a unified normative system, and the primacy of international law over state law within the monistic framework. He argues in support of the -claim that only monism is compatible with the epistemological postulate, according to which cognition requires the unity of the object of cognition, that the norm conflicts that are said by the critics of monism to undermine monism are harmless (...)
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  22.  12
    Neil MacCormick, Practical Reason in Law and Morality.Torben Spaak - 2009 - Ethics 120 (1):192-197.
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  23.  20
    Robert Alexy and the Dual Nature of Law.Torben Spaak - 2020 - Ratio Juris 33 (2):150-168.
    Robert Alexy's claim that law of necessity has a dual nature raises many interesting philosophical questions. In this article, I consider some of these questions, such as what the meaning of the correctness thesis is, whether Alexy's discourse theory supports this thesis, and whether the thesis is defensible; whether Alexy's argument from anarchy and civil war supports the claim that law of necessity has a real dimension; and what the implications are of the use of moral arguments, such as the (...)
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  24.  75
    Relativism in legal thinking: Stanley fish and the concept of an interpretative community.Torben Spaak - 2008 - Ratio Juris 21 (1):157-171.
    Relativistic theories and arguments are fairly common in legal thinking. A case in point is Stanley Fish's theory of interpretation, which applies to statutes and constitutions as well as to novels and poems. Fish holds, inter alia, (i) that an interpretation of a statute, a poem, or some other text can be true or valid only in light of the interpretive strategies that define an interpretive community, and (ii) that no set of interpretive strategies (and therefore no interpretation) is truer (...)
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  25.  28
    The Cambridge Companion to Legal Positivism.Torben Spaak (ed.) - 2021 - New York, NY: Cambridge University Press.
    Legal positivism is one of the fundamental theories of jurisprudence studied in law and related fields around the world. This volume addresses how legal positivism is perceived and makes the case for why it is relevant for contemporary legal theory. The Cambridge Companion to Legal Positivism offers thirty-three chapters from leading scholars that provide a comprehensive commentary on the fundamental ideas of legal positivism, its history and major theorists, its connection to normativity and values, its current development and influence, as (...)
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  26. The scope of legal positivism : validity and interpretation?Torben Spaak - 2021 - In The Cambridge Companion to Legal Positivism. New York, NY: Cambridge University Press.
     
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  27.  17
    Naturalizing Jurisprudence – By Brian Leiter. [REVIEW]Torben Spaak - 2008 - Theoria 74 (4):352-362.
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  28.  77
    Meta-ethics and legal theory: The case of Gustav radbruch. [REVIEW]Torben Spaak - 2009 - Law and Philosophy 28 (3):261 - 290.
  29.  53
    Naturalizing Jurisprudence – By Brian Leiter. [REVIEW]Torben Spaak - 2008 - Theoria 74 (4):352-362.
  30. Review of Rex Martin, a system of rights. [REVIEW]Torben Spaak - 1995 - Theoria 61 (1):80-94.
     
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  31.  14
    Book Reviews MacCormick, Neil . Practical Reason in Law and Morality . Oxford: Oxford University Press, 2008. Pp. 224. $90.00 (cloth). [REVIEW]Torben Spaak - 2009 - Ethics 120 (1):192-196.
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  32.  93
    Guidance and constraint: the action-guiding capacity of Neil MacCormick’s theory of legal reasoning. [REVIEW]Torben Spaak - 2007 - Law and Philosophy 26 (4):343-376.
    Offers analysis of MacCormick's positivistic account of legal reasoning, partially in response to Dworkin's claim that positivism is inadequate as a theory of law because it cannot account for the nature of legal reasoning. Having analyzed MacCormick's theory and having applied it to some cases, we are now ready to evaluate it. My conclusion is that inmany cases MacCormick's theory can indeed give the judge the kind of concrete guidance he needs when with a hard case. The reason why MacCormick's (...)
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  33.  19
    Plans, Conventions, and Legal Normativity: A Review of Stefano Bertea and George Pavlakos (eds), New Essays on the Normativity of Law. [REVIEW]Torben Spaak - 2012 - Jurisprudence 3 (2):509-521.
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  34.  40
    Philip Soper, the ethics of deference cambridge studies in philosophy and law, cambridge university press, 2002, 189 pages, isbn 0-521-81047-. [REVIEW]Torben Spaak - 2006 - Theoria 72 (2):138-147.
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  35.  32
    Review of natural law and modern moral philosophy (ellen Frankel Paul et al eds.). [REVIEW]Torben Spaak - forthcoming - Theoria.
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