Legal Morality in Fullerian Jurisprudence

The American legal philosopher Lon L. Fuller profoundly advanced a sophisticated morality conception of law through his argument for thesis of Legal Morality (LM). In particular, he adumbrated a novelist idea of “ internal morality of law” that would enable the transformation of the sophisticated morality conception of law into a conception idea of law and morality connection while simultaneously providing an explanation of the new and fresh thesis of legal morality. Contrary to the common (and mostly legal positivism) view, Fuller argues that it is not only the case that the (external) morality determines what the level of any connection between law and morality, rather it is also the idea of law in itself regenerates the idea of morality (internally). However, it is argued that in spite of the fact that Fuller suggested a sophisticated account of interconnection between law and morality, he fails to develop the complexities of the (morality) connection to the law in systemic way. What does he miss in his argument of the connection between law and morality? This study will advance the view that there are more than one way to make a connection between law and morality. Some of these connections can be named here: the morality of duty, the morality of legal subject, the morality of legal official, the morality of legal end, the morality of legal content and the internal and external morality of law. This study argues that each type of these connections between law and morality importantly has many effective outcomes in term of conception and implication of law, which Fuller did not tell us. In Fuller’s work, one can grasp the soundness of this connection in a variety levels. Yet, surprisingly to Fuller’s own works, this study will show that Fuller’s thesis of legal molarity must be expanded and justified on the different ground. In doing so, this study argues not only to make sense of Fuller’s legal morality, but it also redirects the systemic way to bring all pieces of Fuller’s claim of legal morality together and to seek the rationality beyond the legal.

Radbruch’s Formula Revisited: The Lex Injusta Non Est Lex Maxim in Constitutional Democracies

According to German legal philosopher Gustav Radbruch, laws that are substantively unjust to an intolerable degree should not be regarded as legally valid, even if they were promulgated according to stipulated procedure. Radbruch’s Formula (as his position has been termed) contradicts the central tenet of legal positivism, according to which the existence of laws does not necessarily depend on their merit.1 While some legal positivists suppose that legal invalidity based on the content of particular laws is a central tenet of natural law theory,2 natural law theorists such as John Finnis opine that the lex injusta non est lex3 maxim has been no more than a subordinate theorem of classical natural law theory.4 In Finnis’s view, unjust laws give rise to legal obligation “in a legal sense.”5

The Characters of Criminal Law

Criminal law theorists necessarily start their theorizing with some idea of their subject. The dominant figure in the canon is the criminal actor understood as a freestanding individual, removed from his group affiliations. I call him Model 1. Then there is the demographic or social model of the criminal person. Here our disciplinary characters are treated as members of a population that have certain propensities. Those who subscribe to this second model tend to be thinking of real historical and social people, located in places and contexts, as well as people with bodies and sexes. I call this Model 2. Most criminal laws operate on the basis of a Model 1 person, with an individual without social characteristics or context. But occasionally these demographic concerns are directly expressed in criminal laws. The English criminal law of rape is one such law. It still names men as the people of concern. The English law of rape therefore poses a challenge for Model 1 individualists, requiring them to make some sense of this population-specific law. So, when individualists write about the nature of rape and its law, as they often do, it is highly revealing of their thinking about their own criminal law character. Here I consider the work of legal philosopher John Gardner, who has written influentially about English rape law, to discover what an individualist does with a law which acknowledges its population of concern. What happens when the two paradigms conflict?

Semantics of legal concepts and natural kind terms: D. Patterson’s arguments

The paper is devoted to the analysis of the arguments of the american legal philosopher Dennis Patterson regarding the applicability of the natural kinds terms to the semantics of the legal language. Based on the Ronald Dworkin’s theory of law, reasonable criticized by D. Patterson, the features of the formation and interpretation of legal concepts are considered. Arguments are presented that demonstrate the content of R. Dworkin and D. Patterson’s methodological approach to the interpretation of the semantics of legal concepts as well as argumentation regarding the normativity of legal reality, the objects of which are displayed in the content of legal concepts

INFLUENCE OF LINGUISTIC PHILOSOPHY ON ANALYTICAL JURISPRUDENCE THROUGH THE PERSPECTIVE OF H. L. A. HART

This article discusses the influence of emerging linguistic philosophy theories in the 20th century on the development of analytical jurisprudence through an examination of the way those theories influenced the legal philosopher H. L. A. Hart. Although Hart is significantly influenced by linguistic philosophy, his legal theory could not have been developed solely with it. This is evidenced by Hart’s disownment of the essay Ascription of Responsibility and Rights, his attempt to employ ideas from ordinary language philosophy in the context of law. Hart’s theoretical development shows that he was above all not a linguistic, but a legal philosopher; and that analytical jurisprudence, albeit influenced by linguistic philosophy, depends on aspects beyond it.

Defnition as a Tool of the Formation of 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.

On the Relationship between Facts and Legal Concepts: Methodological Analysis

In his paper "The Influence of Normative Reasons on the Formation of Legal Concepts", German legal philosopher Lorenz Kähler attempts to give a theoretical and philosophical understanding of the legal normativity in terms of disclosure of normative reasons that determine the choice and definition of the legal concepts. Despite the broad context of substantiating the problem under study and ways to solve it, the author formulates a number of controversial and disputable provisions. Among them, we can note the ambiguity and uncertainty of the content of legal concepts that are projected by the author exclusively on the field of legal norms, which does not allow us to correctly distinguish the process of cognition of legal phenomena and the application of legal norms. The analysis of the problem of normativity is carried out from the position of separating the normative legal order from the field of empirical facts without the possibility of correlating normative prescriptions with factual circumstances and actions (the normative grounds of which are the main point of L. Kähler, s research). The paper offers a number of critical arguments that demonstrate the methodological incorrectness and unreasonableness of certain judgments of L. Kähler, as well as conceptual decisions about the relationship between facts and norms in the context of the boundaries of normative and factual law.

Jerzy Wróblewski’s Legal Theory and His Influence on Humanist Legal Thought

This paper presents Jerzy Wróblewski’s (1926–1990) theory of law. He was an eminent Polish legal philosopher. His philosophical minimalism, anticognitivism, relativism and moderate reconstructivism constitute the basis for analytical theory of law in Poland. He was developing his theory of law over the span of several dozens of years but the assumptions were formulated already in his first work on legal interpretation published in 1959. His paradigm of legal theory includes several areas: the theory of the legal norm, theory of legal interpretation, theory of the legal system, theory of application of law, theory of law-making and the methodology of legal sciences.

H.L.A. HART AND THE "OPEN TEXTURE" OF LANGUAGE

Today the concept of "open texture" is better known by works of the legal philosopher, H. L.A. Hart. But he expressly borrowed it from the philosopher of language, Friedrich Waismann. Waismann’s "open texture" had been part of an important challenge to verificationism and phenomenalism, grounded on the simple point that our definitions, our rules for usage, will often fail to guide us when we face the truly unusual. Our rules for language usage assume certain standard background conditions, and do not offer resources when those background conditions no longer prevail. Waismann’s "open texture" thus essentially refers to the potential vagueness of terms when applied in extreme circumstances, rather than their current vagueness under normal circumstances. Hart’s use of "open texture" in his book, "The Concept of Law", was offered as part of his argument for judicial discretion in interpreting and applying legal rules. Hart borrows the label from Waismann and cites to Waismann as a reference. However, Hart’s application of "open texture" was significantly different from Waismann’s understanding, and Hart’s work has been misunderstood in part because those differences have been underestimated. For Hart, the "open texture" of words and rules describes what is usually labeled as "vagueness," the uncertainty of application with borderline cases and novel situations (though novelty that falls short of the truly unexpected — cats that grow to nine feet tall or keep disappearing and reappearing — with which Waismann was concerned). Hart builds an argument for judicial discretion in part on (his understanding) of "open texture." In the borderline or unusual case, one cannot determine if the term (and the rule) should be used.