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General theory of law and state

Union, N.J.: Lawbook Exchange. Edited by Hans Kelsen (1945)

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  1. The Folk Concept of Law: Law Is Intrinsically Moral.Brian Flanagan & Ivar R. Hannikainen - 2022 - Australasian Journal of Philosophy 100 (1):165-179.
    ABSTRACT Most theorists agree that our social order includes a distinctive legal dimension. A fundamental question is that of whether reference to specific legal phenomena always involves a commitment to a particular moral view. Whereas many philosophers advance the ‘positivist’ claim that any correspondence between morality and the law is just a function of political circumstance, natural law theorists insist that law is intrinsically moral. Each school claims the crucial advantage of consistency with our folk concept. Drawing on the notion (...)
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  • Quasi-Expressivism about Statements of Law: A Hartian Theory.Stephen Finlay & David Plunkett - 2018 - In John Gardner, Leslie Green & Brian Leiter (eds.), Oxford Studies in Philosophy of Law Volume 3. Oxford University Press. pp. 49-86.
    Speech and thought about what the law is commonly function in practical ways, to guide or assess behavior. These functions have often been seen as problematic for legal positivism in the tradition of H.L.A. Hart. One recent response is to advance an expressivist analysis of legal statements (Toh), which faces its own, familiar problems. This paper advances a rival, positivist-friendly account of legal statements which we call “quasi-expressivist”, explicitly modeled after Finlay’s metaethical theory of moral statements. This consists in a (...)
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  • A Positivist Route for Explaining How Facts Make Law.David Plunkett - 2012 - Legal Theory 18 (2):139-207.
    In “How Facts Make Law” and other recent work, Mark Greenberg argues that legal positivists cannot develop a viable constitutive account of law that meets what he calls the “the rational-relation requirement.” He argues that this gives us reason to reject positivism in favor of antipositivism. In this paper, I argue that Greenberg is wrong: positivists can in fact develop a viable constitutive account of law that meets the rational-relation requirement. I make this argument in two stages. First, I offer (...)
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  • Was Austin right after all? On the role of sanctions in a theory of law.Frederick Schauer - 2010 - Ratio Juris 23 (1):1-21.
    In modern jurisprudence it is taken as axiomatic that John Austin's sanction-based account of law and legal obligation was demolished in H.L.A. Hart's The Concept of Law, but Hart's victory and the deficiencies of the Austinian account may not be so clear. Not only does the alleged linguistic distinction between being obliged and having an obligation fail to provide as much support for the idea of a sanction-independent legal obligation as is commonly thought, but the soundness of Hart's claims, as (...)
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  • On the legal responsibility of autonomous machines.Bartosz Brożek & Marek Jakubiec - 2017 - Artificial Intelligence and Law 25 (3):293-304.
    The paper concerns the problem of the legal responsibility of autonomous machines. In our opinion it boils down to the question of whether such machines can be seen as real agents through the prism of folk-psychology. We argue that autonomous machines cannot be granted the status of legal agents. Although this is quite possible from purely technical point of view, since the law is a conventional tool of regulating social interactions and as such can accommodate various legislative constructs, including legal (...)
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  • Legal Certainty and Correctness.Robert Alexy - 2015 - Ratio Juris 28 (4):441-451.
    What is the relation between legal certainty and correctness? This question poses one of the perpetual problems of the theory and practice of law—and for this reason: The answer turns on the main question in legal philosophy, the question of the concept and the nature of law. Thus, in an initial step, I will briefly look at the concept and the nature of law. In a second step, I will attempt to explain what the concept and the nature of law, (...)
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  • Towards a theory of criminal law?R. A. Duff - 2010 - Aristotelian Society Supplementary Volume 84 (1):1-28.
    After an initial discussion (§i) of what a theory of criminal law might amount to, I sketch (§ii) the proper aims of a liberal, republican criminal law, and discuss (§§iii–iv) two central features of such a criminal law: that it deals with public wrongs, and provides for those who perpetrate such wrongs to be called to public account. §v explains why a liberal republic should maintain such a system of criminal law, and §vi tackles the issue of criminalization—of how we (...)
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  • Fair Play, Political Obligation, and Punishment.Zachary Hoskins - 2011 - Criminal Law and Philosophy 5 (1):53-71.
    This paper attempts to establish that, and explain why, the practice of punishing offenders is in principle morally permissible. My account is a nonstandard version of the fair play view, according to which punishment 's permissibility derives from reciprocal obligations shared by members of a political community, understood as a mutually beneficial, cooperative venture. Most fair play views portray punishment as an appropriate means of removing the unfair advantage an offender gains relative to law-abiding members of the community. Such views (...)
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  • The personality of public authorities.Manish Oza - 2024 - Law and Philosophy 43 (4):415-450.
    This paper is about when associations, and in particular associations that are part of the state, should be treated as legal persons. I distinguish two forms of association – those that render coherent the agency of their members and those that are group agents – and argue that only the latter should be treated as persons. Following this, I discuss the conditions under which associations that are part of the state can legitimately be group agents.
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  • An Antimony in Kelsen's Pure Theory of Law.Eugenio Bulygin - 1990 - Ratio Juris 3 (1):29-45.
    Some important ideas in Kelsen's Pure Theory of Law can be traced back to Kantian tradition, which has been very influential in Kelsen's thought, particularly in his early period. Among them we find the distinction between two radically different worlds (the world of facts and the world of norms), the normativity of legal science and the idea of validity as a binding force, based on the famous doctrine of the basic norm. These tenets and, especially, the use of a normative (...)
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  • The Legality of Law.John Gardner - 2004 - Ratio Juris 17 (2):168-181.
    In this paper I outline various different objects of investigation that may be picked out by word “law” (or its cognates). All of these objects must be investigated in an integrated way before one can provide a complete philosophical explanation of the nature of law. I begin with the distinction between laws (artefacts) and law (the genre to which the artefacts belong). This leads me to the distinction between the law (of a particular legal system) and law (the genre of (...)
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  • The nature of law.Andrei Marmor - 2008 - Stanford Encyclopedia of Philosophy.
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  • An Empowerment Theory of Legal Norms.Stanley L. Paulson - 1988 - Ratio Juris 1 (1):58-72.
    Traditionally legal theorists, whenever engaged in controversy, have agreed on one point: legal norms are par excellence rules which impose obligations. The author examines this assumption, which from another perspective (that of constitutional law, for instance) appears less obvious. In fact, constitutional rules are commoniy empowering norms, norms which do not create duties but powers. To this objection many theorists would reply that empowering rules are incomplete and that they are to be understood as parts of duty‐creating rules. A different (...)
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  • Agency and Embodiment: Groups, Human–Machine Interactions, and Virtual Realities.Johannes Himmelreich - 2018 - Ratio 31 (2):197-213.
    This paper develops a taxonomy of kinds of actions that can be seen in group agency, human–machine interactions, and virtual realities. These kinds of actions are special in that they are not embodied in the ordinary sense. I begin by analysing the notion of embodiment into three separate assumptions that together comprise what I call the Embodiment View. Although this view may find support in paradigmatic cases of agency, I suggest that each of its assumptions can be relaxed. With each (...)
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  • Agency as difference-making: causal foundations of moral responsibility.Johannes Himmelreich - 2015 - Dissertation, London School of Economics and Political Science
    We are responsible for some things but not for others. In this thesis, I investigate what it takes for an entity to be responsible for something. This question has two components: agents and actions. I argue for a permissive view about agents. Entities such as groups or artificially intelligent systems may be agents in the sense required for responsibility. With respect to actions, I argue for a causal view. The relation in virtue of which agents are responsible for actions is (...)
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  • Practical Knowledge: Outlines of a Theory of Traditions and Skills.J. C. Nyíri & Barry Smith (eds.) - 1988 - Croom Helm.
    A series of papers on different aspects of practical knowledge by Roderick Chisholm, Rudolf Haller, J. C. Nyiri, Eva Picardi, Joachim Schulte Roger Scruton, Barry Smith and Johan Wrede.
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  • 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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  • 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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  • Explaining normativity.Stephen P. Turner - 2007 - Philosophy of the Social Sciences 37 (1):57-73.
    In this reply, I raise some questions about the account of "normativity" given by Joseph Rouse. I discuss the historical form of disputes over normativity in such thinkers as Kelsen and show that the standard issue with these accounts is over the question of whether there is anything added to the normal stream of explanation by the problem of normativity. I suggest that Rouse’s attempt to avoid the issues that arise with substantive explanatory theories of practices of the kind criticized (...)
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  • The Paradox of Constituent Power. The Ambiguous Self-Constitution of the European Union.Hans Lindahl - 2007 - Ratio Juris 20 (4):485-505.
    The French and Dutch referenda on the adoption of a European Constitutional Treaty highlight a remarkable ambiguity in the self‐constitution of a polity, which can be viewed as both constitution by and of a collective self. This ambiguity is a fundamental feature of polities in general, and the European Union in particular. Rather than suppressing this ambiguity, democracy—and a fortiori a European democracy worth its name—institutionalises it as the guiding principle of political action. As will transpire, the conceptual and normative (...)
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  • Gustav Radbruch vs. Hans Kelsen: A Debate on Nazi Law.Frank Haldemann - 2005 - Ratio Juris 18 (2):162-178.
    . Can the label “law” apply to rules as amoral as the enactments of the Nazis? This question confronted the courts in Germany after 1945. In dealing with it, the judges had to take sides in the philosophical debate over the concept of law. In this context, the prominent voices of the legal philosophers Gustav Radbruch and Hans Kelsen could not go unheard. This paper draws on what could have been the “Radbruch‐Kelsen debate on Nazi Law.” In examining the debate, (...)
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  • Situated legal systems and their operational semantics.Antônio Carlos da Rocha Costa - 2015 - Artificial Intelligence and Law 23 (1):43-102.
    This work adopts H. Kelsen’s concept of legal system, proposes a formal definition for such notion, and introduces an operational semantical framework for legal systems that are situated in agent societies. Agent societies are defined. Relevant formal properties of situated legal systems are discussed; the way they are exposed in the operational semantical framework is explained, and their truth formally proved. Also, for the sake of a better understanding of the legal-theoretic assumptions of the paper, recurring issues regarding Kelsen’s theory (...)
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  • Norm Performatives and Deontic Logic.Rosja Mastop - 2011 - European Journal of Analytic Philosophy 7 (2):83-105.
    Deontic logic is standardly conceived as the logic of true statements about the existence of obligations and permissions. In his last writings on the subject, G. H. von Wright criticized this view of deontic logic, stressing the rationality of norm imposition as the proper foundation of deontic logic. The present paper is an attempt to advance such an account of deontic logic using the formal apparatus of update semantics and dynamic logic. That is, we first define norm systems and a (...)
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  • 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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  • Democracy and the Right to Exclusion.Ludvig Beckman - 2014 - Res Publica 20 (4):395-411.
    A defining feature of democracy is the inclusion of members of the political association. However, the corresponding right to exclusion has attracted undeservedly scant attention in recent debates. In this paper, the nature of the right to exclusion is explored. On the assumption that inclusion requires the allocation of legal power-rights to the people entitled to participate in the making of collective decisions, two conceptions of the right to exclusion are identified: the liberty-right to exclude and the claim-right to exclude. (...)
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  • On the Nature of Norms.Peter Koller - 2014 - Ratio Juris 27 (2):155-175.
    This paper deals with the question of how norms are to be conceived of in order to understand their role as guidelines for human action within various normative orders, particularly in the context of law on the one hand and conventional morality on the other. After some brief remarks on the history of the term “norm,” the author outlines the most significant general features of actually existing social norms, including legal and conventional norms, from which he arrives at two basic (...)
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  • ‘Ought implies Can’ and the law.Chris Fox & Guglielmo Feis - 2017 - Inquiry: An Interdisciplinary Journal of Philosophy 61 (4):370-393.
    In this paper, we investigate the ‘ought implies can’ thesis, focusing on explanations and interpretations of OIC, with a view to clarifying its uses and relevance to legal philosophy. We first review various issues concerning the semantics and pragmatics of OIC; then we consider how OIC may be incorporated in Hartian and Kelsenian theories of the law. Along the way we also propose a taxonomy of OIC-related claims.
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  • The Dredd-Ful Day of Judgement: Judicial Models and the Twilight of the West.Mark Thomas - 2021 - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 35 (5):2107-2142.
    I am the LawIt is hard to imagine two more disparate characters than Judge Joseph Dredd and Hercules J—the one an over-muscular, faceless and heavily armed street judge astride a Lawmaster motorcycle who overidentifies with his role ; the other devoid of any physical presence or image, and structurally decoupled from the execution of law by a fierce determination to maintain the separation of powers and accountability which Dredd so effortlessly ignores. Hercules J is the embodiment of an intellectualised, yet (...)
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  • Transnational communities and the concept of law.Roger Cotterrell - 2008 - Ratio Juris 21 (1):1-18.
    The proliferation of forms of transnational regulation, often unclear in their relation to the law of nation states but also, in some cases, claiming authority as “law,” suggests that the concept of law should be reconsidered in the light of processes associated with globalisation. This article identifies matters to be taken into account in any such reconsideration: in particular, ideas of legal pluralism, of degrees of legalisation, and of relative legal authority. Regulatory authority should be seen as ultimately based in (...)
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  • Language-bound terms—term-bound languages: the difficulties of translating a national civil code into a lingua franca.Ádám Fuglinszky & Réka Somssich - 2020 - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 33 (3):749-770.
    The present paper—taking the example of the English translation of the Hungarian Civil Code of 2013—aims to give an overview on the legal and terminology-related challenges and pitfalls that might occur during the process of translating a civil code with civil law traditions into the language of the common law world. An attempt is made to categorise terminology-related conceptual problems and elaborate how the different types of translation methods could be applied; moreover, how a kind of legal-linguistic checks-and-balances can be (...)
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  • Fragments of a Theory of Legal Sources.Riccardo Guastini - 1996 - Ratio Juris 9 (4):364-386.
    The author discusses a number of issues in the theory of legal sources. The first topic is whether sources should be conceived of as acts or texts. The alternatives are connected with two competing theories of legal interpretation (viz., the cognitive theory and the sceptical theory), which entail different concepts of legal rules and law‐making. The second topic is whether a “formal” or a “material” criterion of recognition of sources should be preferred. The third section is devoted to the analysis (...)
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  • Systematic Interpretation and the Re-systematization of Law: The Problem, Co-requisites, a Solution, Use.Ivan L. Padjen - 2020 - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 33 (1):189-213.
    A renewed search for legal certainty is a reaction to the preponderance of judge made law, which has been in turn prompted by the democratic deficit of the EU and the impact of Anglo-American law. The problem is that the search is oblivious to both systematic interpretation and the need of re-systematization of law. The paper defines systematic interpretation, relates the definition to standard French and German conceptions, indicates the room for systematic interpretation in Anglo-American laws, and states prima facie (...)
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  • Norms that Confer Competence.Torben Spaak - 2003 - Ratio Juris 16 (1):89-104.
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  • Jurisprudence in an Indeterminate World: Pragmatist not Postmodern.Benjamin Gregg - 1998 - Ratio Juris 11 (4):382-398.
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  • Facts, Law, Exculpation, and Inculpation: Comments on Simons.Larry Alexander - 2009 - Criminal Law and Philosophy 3 (3):241-245.
    Orthodox criminal law doctrine treats mistakes of law and mistakes of fact differently for purposes of both exculpation and inculpation. Kenneth Simons’ paper in general defends this orthodoxy. I have earlier criticized the criminal law’s attempt to distinguish mistakes of law from mistakes of fact, and I continue to maintain, in opposition to Simons, that the distinction is problematic.
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  • Methodological Clarity or the Substantial Purity of Law? Notes on the Discussion between Kelsen and Pitamic.Marijan Pavčnik - 2014 - Ratio Juris 27 (2):176-189.
    Leonid Pitamic was convinced that law could not be understood and explored by a single method aiming at a pure object of enquiry. He argued that it was necessary to employ other methods besides the normative one (especially the sociological and axiological methods), which, however, should not be confounded. Methodological syncretism can be avoided by clearly distinguishing between different aspects of law and by allowing the methods to support each other. By following this guideline, and by arguing according to a (...)
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  • Positivism, Legal Validity, and the Separation of Law and Morals.Giorgio Pino - 2014 - Ratio Juris 27 (2):190-217.
    The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between “standard positivism” and “post‐Hartian positivism.” Then I will consider various kinds of relations between law and morality that are worthy of jurisprudential interest, and explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should (...)
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  • Criminalizing the State.François Tanguay-Renaud - 2013 - Criminal Law and Philosophy 7 (2):255-284.
    In this article, I ask whether the state, as opposed to its individual members, can intelligibly and legitimately be criminalized, with a focus on the possibility of its domestic criminalization. I proceed by identifying what I take to be the core objections to such criminalization, and then investigate ways in which they can be challenged. First, I address the claim that the state is not a kind of entity that can intelligibly perpetrate domestic criminal wrongs. I argue against it by (...)
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  • Levinasian Ethics and Legal Obligation.Jonathan Crowe - 2006 - Ratio Juris 19 (4):421-433.
    This paper discusses the implications of the ethical theory of Emmanuel Levinas for theoretical debates about legal obligation. I begin by examining the structure of moral reasoning in light of Levinas's account of ethics, looking particularly at the role of the third party (le tiers) in modifying Levinas's primary ethical structure of the face to face relation. I then argue that the primordial role of ethical experience in social discourse, as emphasised by Levinas, undermines theories, such as that of H. (...)
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  • The Relative Heteronomy of Law.Neil MacCormick - 1995 - European Journal of Philosophy 3 (1):69-85.
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  • Cultural Sovereignty, Relativism, and International Human Rights: New Excuses for Old Strategies.Anne F. Bayefsky - 1996 - Ratio Juris 9 (1):42-59.
    Although the Charter of the United Nations embodied an unresolved tension between state sovereignty and the inviolability of human rights, the fall of the Berlin Wall seemed to herald universal acceptance of the legitimacy of international concern for the protection of human rights. Since that time, however, the sovereignty of states has been pushed with renewed vigour under the guise of cultural sovereignty. Three examples of the role of cultural sovereignty in the international human rights sphere are proposed to demonstrate (...)
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  • Rechtsgefühl and the Rule of Law.Roger Scruton - 1988 - In J. C. Nyíri & Barry Smith (eds.), Practical Knowledge: Outlines of a Theory of Traditions and Skills. Croom Helm. pp. 61.
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  • The Normative Paradigm of Constitutional Democracy.Luigi Ferrajoli - 2011 - Res Publica 17 (4):355-367.
    This piece criticizes traditional formal and procedural conceptions of democracy, which fail to account for the development of contemporary constitutional democracy. The latter is characterized by a substantive dimension with respect to the content of the decisions taken through the democratic process. The validity of such decision is conditioned by the respect and actualization of fundamental rights, which are established by the constitution. The limits and constraints established by the constitution require juridical science to play a critical and programmatic role (...)
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  • Reframing the Catholic Understanding of Just War: Two Contrasting Approaches in the Interwar Period.Gregory M. Reichberg - 2018 - Journal of Religious Ethics 46 (3):570-596.
    During the inter war period, European Catholic authors exhibited two different approaches to the question of just war. One approach was articulated at the “Fribourg Conventus,” a 1931 meeting of French, Swiss, and German theologians, whose subsequent declaration (Conventus de bello, published in 1932) called for a reformulation of Catholic teaching based on the premise that the traditional just‐war doctrine had been superseded by developments in international law. A competing approach was articulated by the Dutch Jesuit Robert Regout, who maintained (...)
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  • Situated Ideological Systems: A Formal Concept, a Computational Notation, some Applications.Antônio Carlos da Rocha Costa - 2017 - Axiomathes 27 (1):15-78.
    This paper introduces a formal concept of ideology and ideological system. The formalization takes ideologies and ideological systems to be situated in agent societies. An ideological system is defined as a system of operations able to create, maintain, and extinguish the ideologies adopted by the social groups of agent societies. The concepts of group ideology, ideological contradiction, ideological dominance, and dominant ideology of an agent society, are defined. An ideology-based concept of social group is introduced. Relations between the proposed formal (...)
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  • 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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  • Naturalizing jurisprudence – by Brian Leiter.Torben Spaak - 2008 - Theoria 74 (4):352-362.
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  • Notes . Discussion . Book reviews Hans Kelsen on Norm and language.William E. Conklin - 2006 - Ratio Juris 19 (1):101-126.
    This essay examines an ambiguity in Hans Kelsen’s theory of a norm. On the one hand, Kelsen claims to adhere to what he considers the ‘is/ought’ dichotomy. Kelsen claims that he is describing what really is. On the other hand, Kelsen seems to be understanding the is/ought dichotomy in a very different manner than that by which his contemporaries or, indeed, today’s readers understand the distinction. The clue to this ambiguity is Kelsen’s understanding of a norm. Although legal existence is (...)
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  • 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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  • (1 other version)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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