scholarly journals Propositions as (non-linguistic) objects and philosophy of law: Norms-as-propositions

2020 ◽  
Vol 31 (3) ◽  
pp. 406-419
Author(s):  
Guglielmo Feis
Keyword(s):  
Legal Philosophy ◽  
Philosophy Of Law ◽  
Structured Propositions ◽  
Conceptual Tool ◽  
Philosophical View ◽  
Analytic Tradition ◽  
The One ◽  
Legal Normativity

The paper distinguishes two accounts of legal normativity. One-source accounts claim there is only one source for legal normativity, which is ultimately linguistic. Two-source accounts claim legal normativity is both linguistic and non-linguistic. Two-source accounts claim we need to go beyond language and beyond propositions taken as linguistic entities, while they are one-source accounts? main conceptual tool. Both accounts construct propositions as linguistic. There is, nevertheless, a documented analytic tradition starting with G.E. Moore that constructs propositions as non-linguistic entities. Today, the problem of the unity of proposition and structured propositions are highly debated in metaphysics. How does such debates fit into the one-source vs. two-source picture of legal normativity? Why has analytic legal philosophy failed to consider such an option concerning propositions (arguably calling descriptive sentences about norms ?normative propositions? did not help)? This paper thus (I) reconstructs the argumentative dynamics between one-source and two-source accounts; (II) presents the less considered philosophical view of propositions as non-linguistic entities and (III) discusses how to include or dismiss such a philosophical view in the one-source/two-source debate on legal normativity.

scholarly journals Law and aesthetics: critical note

2010 ◽  
Vol 6 (2) ◽  
pp. 631-640 ◽  
Author(s):  
Luis Satie
Keyword(s):  
Legal Philosophy ◽  
Philosophy Of Law ◽  
Legal Form ◽  
Critical Note ◽  
Art Form ◽  
Conservative Approximation ◽  
Conditions Of Possibility ◽  
The Relationship ◽  
The Way

It is thought in the theory and philosophy of law, aimed at discussing the conditions of possibility of rapprochement between the art form and legal form. The text investigates, dialectically, the implications for the legal philosophy of the impossibility of such approximation, and the problems in a conservative approximation. It follows that: 1) would be a loss for a reason and therefore to legal philosophy, not to communicate between art and law; 2) the relationship between legal and aesthetic standards should be guided by the critical, especially in terms of Adorno's thought. It is by overcoming the dichotomy between possibility and impossibility, opening on the idea of constellation of methodological categorical fields of law and aesthetics in their current forms, paving the way for understanding the legal form as a tragic way.

scholarly journals Phenomenological Concept of Law from the Perspective of Carlos Cossio

2020 ◽  
Vol 90 ◽  
pp. 119-140
Author(s):  
Krzysztof Goździalski
Keyword(s):  
Strong Relationship ◽  
Legal Philosophy ◽  
Philosophy Of Law ◽  
Philosophy Of Culture ◽  
Starting Point ◽  
Concept Of Law

The originality of Cossio’s works is expressed by a strong relationship between philosophy of law and his philosophical assumptions. The starting point for deliberating on law are widely recognized ontological and epistemological contentions. Cossio justifies his legal theses basing them on his philosophical views. Egology derives from Edmund Husserl’s phenomenology which is related to some elements of William Dilthey’s philosophy of culture. Martin Heiddeger’s and Immanuel Kant’s philosophies are the basis too. The first part describes Cossio’s ontologies of subjects otherwise known as regional ontologies. Methods for examining the above subjects and gnoseological acts are presented here too. The second part presents the characteristics of law as a cultural subject. The article is not only a report. Its aim is also to show that Carlos Cossio’s legal philosophy is semantic in character.

Russian philosophy of law

2018 ◽  
Author(s):  
Andrzej Walicki
Keyword(s):  
Human Rights ◽  
World View ◽  
Russian Philosophy ◽  
Right Wing ◽  
Left Wing ◽  
Scottish Enlightenment ◽  
Philosophy Of Law ◽  
American Constitution ◽  
Imperial Russia ◽  
The One

Russian thought is rarely associated with philosophy of law. The intellectuals of pre-revolutionary Russia are known rather for their uncompromising critique of legalism, passing sometimes into a genuine ‘legal nihilism’. Indeed, both right-wing and left-wing Russian thinkers – the Slavophiles and Dostoevskii on the one hand, the populists and anarchists (from Bakunin to Tolstoi) on the other – saw modern rational law as an instrument of egoistic bourgeois individualism, destroying the values of communal collectivism still preserved among the Russian peasantry. This attitude found expression not only in different forms of programmatic anti-capitalism but also in a tendency to discredit civil rights and political liberty as a mere mask for capitalist exploitation. Capitalist development and the juridicization of social bonds it involved were perceived as something peculiar to the West, coming to Russia from without and as such not worthy of acceptance. Law and legal rights were criticized in Russia from many quarters and for various reasons: in defence of an idealized autocracy or in defence of true freedom, on behalf of the Russian soul or on behalf of universal progress towards socialism, in the name of Christ or in the name of Marx. In this manner right-wing and left-wing Russian intellectuals supported one another in creating a peculiar tradition of the censure of law. However, it would be wrong to draw from these facts a conclusion of an inherent hostility between the ‘Russian mind’ and the ‘spirit of law’. The ‘juridical world-view’ of the Enlightenment was well represented in imperial Russia. The modernizing Russian autocrats – Peter the Great and Catherine the Great – believed firmly in the power of rational legislation and won admiration from among leading European thinkers (Leibniz, Voltaire, Diderot) fir setting a good example for Western monarchs. The first radical critic of Russian autocracy, Aleksandr Radishchev (1749–1802), was in turn a theorist of natural law, a firm believer in inalienable human rights, and an enthusiastic worshipper of the American constitution. Under the reign of Alexander I (1801–25), who himself thought seriously about the introduction of constitutional rule in Russia, admiration for law was very strong among Russia’s intellectual elite. Radischchev’s disciples, Ivan Pnin and Vasilii Popugaev, inspired also by the Scottish Enlightenment, advocated the idea of a ‘civil society’ with a developed system of private law and legally safeguarded human rights. Nikita Murav’ev and Pavel Pestel, ideological leaders of the two trends within the Decembrist movement (named so after the abortive uprising of December l825), expressed their ideas in the form of detailed constitutional projects. A common feature of these projects, otherwise very different, was a pronounced juridical rationalism, sharply contrasting with all variants of a sceptical attitude towards law.

Radbruch, Gustav (1878–1949)

2018 ◽  
Author(s):  
Massimo La Torre
Keyword(s):  
Twentieth Century ◽  
Weimar Republic ◽  
Personal History ◽  
Legal Philosophy ◽  
Legal Philosopher ◽  
Legal Science ◽  
The One ◽  
German Universities

Gustav Radbruch is an emblematic figure in twentieth-century German legal philosophy and legal science. His particular blending of legal philosopher, dogmatist and politician, and his personal history, interwoven with the tragedy of the Weimar Republic and the rebirth of a democratic Germany after the Nazi horror, have given him special prestige and influence on both constitutional and ordinary jurisprudence in Germany. Some of Radbruch’s theses, like the one in his well-known article ‘Gesetzliches Unrecht und übergesetzliches Recht’ (1946 – translatable as ‘Statutory Non-law and Suprastatutory Law’), remain highly topical in German universities and courts.

Legal concepts

2018 ◽  
Author(s):  
Ake Frandberg
Keyword(s):  
Legal System ◽  
Psychological Factors ◽  
Intellectual Structure ◽  
Legal Philosophy ◽  
Legal Thinking ◽  
Criminal Intent ◽  
The One ◽  
Legal Concepts ◽  
Contextual Setting ◽  
General Scope

Concept-formation is an important component of law-formation. Well-developed legal orders are profoundly conceptual in nature. Throughout Western legal history, legislators have aimed at basing their law-making on concepts of a general scope (such as ‘property’, ‘possession’, ‘usufruct’, ‘criminal intent’ and many others) – and even more so legal scholars in their reconstruction and development of law. Legal thinking makes use of concepts with many different functions and varying logical status. A distinction can be made between concepts that are an integral part of law themselves (here called L-concepts) and concepts that belong to the professional vocabulary of lawyers and jurists in their handling of the law (J-concepts). Among the L-concepts there are on the one hand concepts whose meaning is totally determined by the rules of one single legal system and on the other hand concepts that pertain to two or more legal systems. The latter concepts have a comparative function. J-concepts provide lawyers with a language enabling them to give an intellectual structure to the legal material, to characterize and discuss the professional-juridical handling of law and the methods used for performing that task, to specify the functions of law and to formulate the underlying values of (the handling of) the legal system. There was a tendency in earlier legal philosophy to hypostasize legal concepts, for example, the concept of ‘right’ in classical natural-law doctrine: that is, to postulate real entities to which our concepts/terms refer. The legal philosophy of the twentieth century has to a large extent been a reaction against this tendency. This reaction has taken three different directions: (1) to reduce the abstract legal concepts to factual phenomena such as certain human behaviour or socio-psychological factors (mainly within US and Scandinavian realism); (2) to assign to legal concepts a normative ontological status, placing them in a world of norms, distinct from the world of facts; and (3) to analyse legal concepts in a contextual setting, that is, to find out how they function in actual legal discourse.

scholarly journals BRIDGING THE GAPS : A PARADIGMATIC INSIGHT INTO PHILOSOPHY OF LAW

2016 ◽  
Vol 1 (1) ◽  
pp. 1 ◽  
Author(s):  
Erlyn Indarti
Keyword(s):  
Legal Theory ◽  
Building Blocks ◽  
Legal Philosophy ◽  
Philosophy Of Law ◽  
Legal Science ◽  
Insight Into

Paradigm represents a worldview that defines, for its holder, the nature of theworld, the individual's place in it, and the range of possible relationships to thatworld and its parts. It comprises of four main elements, i.e. ontology, epistemology,methodology, and methods. Within the discipline of law, there seem to be two setsof gaps separating philosophy of law's building blocks that dissociate, first, legalpractice from legal theory and, second, legal science from legal philosophy. It isthe purpose of this article, with the help of paradigmatic insight, to bridge thosegaps.Keywords: law, philosophy of law, paradigm, paradigmatic study of law

The Invisible Center: Christian Liberalism in American Religious Freedom Jurisprudence

2019 ◽  
pp. 174387211986467
Author(s):  
Hannah Dick
Keyword(s):  
Religious Freedom ◽  
Legal Theory ◽  
Religious Studies ◽  
Establishment Clause ◽  
Liberal State ◽  
Conceptual Tool ◽  
Free Exercise ◽  
Liberal Democratic ◽  
Antidiscrimination Law ◽  
The One

This article interrogates the notion of liberal state neutrality when it comes to adjudicating religious freedom claims. Drawing on work in political theory, legal theory, and religious studies, I argue that Christianity is a central and invisible feature of liberalism. I then examine how Christian liberalism has shaped American religious freedom jurisprudence, analyzing contradictory Supreme Court decisions involving free exercise and establishment claims. On the one hand, the language of secular purpose has safeguarded several Christian expressions from Establishment Clause scrutiny. On the other hand, since the passage of the Religious Freedom Restoration Act (1993), some Christian conservative legal advocates have repositioned Christianity as a persecuted religion requiring free exercise exemptions from antidiscrimination law. That the Court has recently obliged this more narrow understanding of religious freedom demonstrates the resilience of the Christian liberal state. While the cases are drawn from the American context, I suggest that the language of Christian liberalism is a useful conceptual tool for analyzing religious freedom claims in a variety of liberal democratic contexts.

The Legal and Political Philosophy of Leonard Nelson

1941 ◽  
Vol 35 (3) ◽  
pp. 437-453
Author(s):  
Levi D. Gresh
Keyword(s):  
Political Philosophy ◽  
The Other ◽  
Legal Philosophy ◽  
Human History ◽  
Judicial Decision ◽  
Human Reason ◽  
Historical School ◽  
Principles Of Justice ◽  
The Moment ◽  
The One

The legal philosophy of Nelson is fundamentally a liberal doctrine. It is, on the one hand, opposed to the philosophy which places a supreme trust in human reason and which believes that man can sit down and codify a system of laws in which there will be no gaps; and, on the other, it is opposed to a belief in the necessary rationality of existing institutions in the onward sweep of human history, the idea which was so dear to the Historical School of jurisprudence.Nelson is a Naturrechtlehrer in the sense that he believes in the existence of metajuristic criteria of justice. That there are elemental principles of justice which are universal, and according to which laws are either just or unjust, decisions either right or wrong, Nelson believes cannot be denied. The moment we admit the injustice of a statute, or a judicial decision, we admit that we have used a criterion on which to base our opinion. The mistake we make, however, is to suppose that we can discover criteria, either empirically or logically.

Kelsen, Legal Normativity, and Formal Justice in International Relations

2013 ◽  
Vol 26 (4) ◽  
pp. 1037-1053 ◽  
Author(s):  
JOSHUA PAINE
Keyword(s):  
Legal Theory ◽  
A Priori ◽  
Methodological Choices ◽  
Theories Of Justice ◽  
Theory Of Law ◽  
The One ◽  
Legal Normativity ◽  
Legal Sense ◽  
Formal Justice ◽  
Legal Meaning

Hans Kelsen's vast body of work is perhaps one of the best examples of the unremarkable but important point that one's legal theory and methodological choices are intricately tied up with how one understands international law. Kelsen stands for a huge number of different positions, but chief amongst them must be his insistence on developing a ‘pure’ theory of law that accounted for the unique normativity of law, separate from empirical facts and causality on the one hand, and substantive theories of justice on the other. For Kelsen, the unique normativity of law is found within the legal system itself, in the idea of normative imputation – the ‘linking of a conditioning material fact with a conditioned consequence’. According to Kelsen, this specifically legal sense of ‘ought’ is an a priori category that allows us to correctly cognize the legal meaning of empirical data.

scholarly journals Defnition as a Tool of the Formation of Legal Concepts

2020 ◽  
Vol 15 (3) ◽  
pp. 92-105
Author(s):  
VITALY V. OGLEZNEV
Keyword(s):  
The Other ◽  
Normative Reasons ◽  
Writing Style ◽  
Philosophy Of Law ◽  
Legal Philosopher ◽  
Legal Norms ◽  
Other Hand ◽  
Interesting Approach ◽  
The One ◽  
Legal Concepts

In his paper "The Influence of Normative Reasons on the Formation of Legal Concepts", German legal philosopher Lorenz Kähler offers a very interesting approach to normativity for the Russian theory and philosophy of law. L. Kähler, considering various normative reasons that influence on the formation of legal concepts, puts forward original and sometimes unexpected conclusions. On the one hand, this can be attributed to the peculiarities of his writing style, but on the other hand, it sometimes seems that he deliberately provokes the reader to questions, involving him in a discussion. In L. Kähler’s approach, there are at least two arguments that require serious clarification and discussion. First, the fact that all the concepts used in legal norms are legal, and, secondly, that the legislator can use lexical, stipulative and real definitions to disclose a content of these concepts. The counterarguments and criticisms offered in this article are based on the statements that the definition is one of the ways of forming legal concepts, and that the question of what is meant by concepts is closely related to the question of which definitions the legislator can use. This led to the following conclusions. First, that in the formulation of legal norms, non-legal concepts, legal concepts and concepts of the law can be used, and this use does not entail that all these concepts become legal. Second, that three types of definitions (lexical, stipulative, and real) are clearly not enough to define these concepts. Moreover, not all of these definitions can be effective and productive, and only some of them are normative in nature. Therefore, it is necessary either to expand the list of definitions, or to significantly modify them in accordance with the specifics of the field of application.

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