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 (...) be taken into account, and what kind of such relations are indeed of no import at all. The upshot of this analysis consists in highlighting the distinction between two different dimensions of legal validity (formal validity and material validity respectively), and in pointing out that the positivist separability thesis can apply to formal validity only. On the other hand, when the ascertainment of material validity is at stake, some form of moral reasoning may well be involved (here and now, it isnecessarilyinvolved). The essay concludes with some brief remarks on the persisting importance of the positivist jurisprudential project. (shrink)

This paper is broadly concerned with Deleuze’s distinction between ‚la loi et les lois’ on the one hand, and jurisprudence on the other. Jurisprudence is the␣creative action of legal practice, the process by which it is forced to think constructively and anew. In such circumstances legal thought is akin to Deleuze’s concept of the event. I explore the distinction between law and jurisprudence by way of Deleuze’s comments on control societies, arguing that, under control, law ceases to be a juridical (...) hierarchy conforming to disciplinary modes to become a regulatory practice of interminable modulation. In order to begin to explore the relations and connections between law/jurisprudence and control, the paper will look to the semiotics of C.S. Peirce (who influenced Deleuze’s work on cinema). In particular it will argue that control operates predominantly through icons. As a consequence I argue that the proper ground of the sign, the event, is co-opted and, following from this, that control functions through the confusing of sense and meaning. (shrink)

Research into Kelsen’s conception of judicial justice seems at first sight contradictory to his own Pure Theory of Law. Upon closer consideration this prima facie contradiction turns out to be only an appearance due to the paradoxical effect that is produced by Kelsen’s pure theory of law itself. By revealing three paradoxical effects of Kelsen’s work in this article, I try to show that research into a Kelsenian representation of judicial justice is not only possible but also meaningful. The first (...) paradox originates from Kelsen’s formalised and value-free concept of law, which unexpectedly confronts the judge with his moral responsibility for the material valuation of the law. Secondly, a paradox arises from Kelsen’s rationalised notion of relative justice, which in fact forces the judge to be absolutely convinced of the moral rightness of his judgement. The third paradox is a result of Kelsen’s idea of objectivised ‘social peace’, by which the judge just realises the subjective and irrational demands of justice. From my analysis of these three seeming contradictions in Kelsen’s pure theory of law emerges an apparent Kelsenian representation of judicial justice. Starting from his pure theory of law it should be possible to conceive of a ‘pure’ form of administration of law, which would stipulate social peace as a condition for the ‘purity’ of a judicial judgement. I even imagine that Kelsen considered peace as a conditio tacita for the validity of the whole legal order, just as he regarded the basic norm as conditio per quam and effectivity as conditio sine qua non for the validity of the legal order. In any case, according to Kelsen’s conception of judicial justice, social peace proves to be the implicit or tacit condition for a ‘pure’ judgement. With that this ‘pacifying jurisprudence’ can be understood as a surprising paragon of a ‘pure’ administration of justice, on the understanding that peace is not a sufficient but an obvious condition for a just administration of law. That this should also apply mutatis mutandis for Kelsen’s concept of the legal order as a whole will be made subject of further research. (shrink)

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.

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 (...) semantics of norm performatives as transformations of the norm system. Then a static modal logic for norm propositions is defined on that basis. In the course of this exposition we stress the performative nature of (i) free choice permission, (ii) the sealing legal principle and (iii) the social nature of permission. That is, (i) granting a disjunctive permission means granting permission for both disjuncts; (ii) non-prohibition does not entail permission, but the authority can declare that whatever he does not forbid is thereby permitted; and (iii) granting permission to one person means that all others are committed to not prevent the invocation of that permission. (shrink)

In this contribution I address the type of emergency that threatens a state’s monopoly of violence, meaning that the state’s competence to provide citizens with elementary security is challenged. The question is, whether actions taken by the state to ward off these threats (should) fall within the ambit of the criminal law. A central problem is the indeterminacy that is inherent in the state of emergency, implicating that adequate measures as well as constitutional constraints to be imposed on such measures (...) cannot easily be determined in advance. This indeterminacy raises two interrelated issues. Firstly, the issue of whether it makes sense to speak of criminal jurisdiction when the existing jurisdiction is challenged as such. To what extent does the indeterminacy call for inherently unlimited powers of the state, implying there can be no such thing as criminal jurisdiction during a state of emergency? Second—if criminal jurisdiction is not in contradiction with the state of emergency—the issue of what criminal liability could mean in such a state needs to be confronted. To what extent does the indeterminacy inherent in the state of emergency jeopardise criminal liability because such indeterminacy engenders severe legal uncertainty regarding the standards against which the relevant actions are to be judged? Both issues will be discussed from the perspective of constitutional democracy, assuming that what is at stake in times of emergency is both the competence to sustain the monopoly of violence and the possibility to constrain the powers of the state. (shrink)

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 (...) struggle, however, to provide a plausible account of this unfairly gained benefit. By contrast, on my account punishment 's permissibility follows more straightforwardly from the fair play view of political obligation: Specifically, the rule instituting punishment is itself among those rules with which members of the political community are obliged to comply. For criminal offenders, compliance requires submitting to the prospect of punishment. (shrink)

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 (...) concept of validity prove to be incompatible with Kelsen's positivistic programme of a value‐free legal science. The science of law cannot state that legal norms are obligatory or binding without trespassing the limits of Kelsen's ideal of a legal science; on the other hand, it is possible to define the concept of a legal system without resorting to the basic norm. So, if Kelsen is to be regarded as a consequent positivist, the Kantian ingredients of his theory must be rejected and the descriptive concept of validity as membership must be substituted for the normative notion of validity as a binding force. (shrink)

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 (...) said to rest with norms, this existence is very different than an existence constituted from social behaviour. Instead, in Kelsen’s view, a norm is a signifying relation between a sign and a cognitive object. Kelsen’s theory of language, however, is very different from a theory of speech acts. When addressing why a norm is binding, we find that Kelsen’s full theory of language excludes important phenomena in order to retain its purity. (shrink)

. 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, (...) it will argue for a substantive account of the morality of the law, as expressed in Radbruch's Formula. (shrink)

At the bottom level of the hierarchical structure (Stufenbau) of the legal system, the transition from “ought” to “is” has not been given its due. I argue that an additional level, that of fully concretized norms, belongs in the hierarchy. This sheds light on precisely where and how the transition from “ought” to “is” takes place. Whereas the fully concretized norm marks the bottom level in the hierarchy of norms, the coercive act or sanction qua fact is not found in (...) the hierarchy, contrary to what Adolf Julius Merkl and Hans Kelsen would have us believe. (shrink)

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.

The issue of whistleblower protection has been gaining more attention in recent years, especially after the passing of Directive (EU) 2019/1937 of the European Parliament and of the Council of October 23, 2019 on the protection of persons who report breaches of Union law. However, there is a fundamental question as to whether the regulations are sufficient to provide real protection for whistleblowers in organizations. In this regard, it seems crucial that the various actors (legislators, managers, employees) work together to (...) create an appropriate social environment. In this context, it is worth considering the use of knowledge of human decision-making processes, with particular emphasis on the possibility of modifying choice architecture and influencing decisions without imposing specific solutions. Nudging can be used in the “foreground” of legal regulation, by adjusting the social environment in such a way that legal regulation can work effectively. The paper provides an introduction to the application of nudge theory in the context of legal protection of whistleblowers. (shrink)

Following Kelsen’s influential theory of law, the concept of validity has been used in the literature to refer to different properties of law (such as existence, membership, bindingness, and more), and so it is inherently ambiguous. More importantly, Kelsen’s equivalence between the existence and the validity of law prevents us from accounting satisfactorily for relevant aspects of our current legal practices, such as the phenomenon of “unlawful law.” This chapter addresses this ambiguity to argue that the most important function of (...) the concept of validity is constituting the complex ontological paradigm of modern law as an institutional-normative practice. In this sense, validity is an artificial ontological status that supervenes on that of the existence of legal norms, thus allowing law to regulate its own creation and creating the logical space for the occurrence of “unlawful law.” This function, I argue in the last part, is crucial to understanding the relationship between the ontological and epistemic dimensions of the objectivity of law. Given the necessary practice-independence of legal norms it is the epistemic accessibility of their creation that enables the law to fulfill its general action-guiding (and thus coordinating) function. (shrink)

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 (...) that the just‐war doctrine could contribute to the formation of international law by providing a much‐needed normative foundation for the use of armed force by individual states in redress of their violated rights. After presenting these two approaches and explaining how they differ, this essay shows how the outlook of the Conventus de bello is reflected in subsequent papal statements on armed force—to the detriment of the traditional terminology of just war. (shrink)

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 (...) descriptivist, “rule-relational” semantics combined with a pragmatic account of the expressive and practical functions of legal discourse. We argue that this approach is at least as well-equipped as expressivism to explain the motivational and prescriptive features of “internal” legal statements, as well as a fundamental kind of legal disagreement, while being better positioned to account for various “external” uses of the same language. We develop this theory in a Hartian framework, and in the final part of the paper argue (particularly against Toh’s expressivist interpretation) that Hart’s own views in The Concept of Law are best reconstructed along such quasi-expressivist lines. (shrink)

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 (...) assumption that is given up, a different kind of disembodied action becomes available. The taxonomy gives a systematic overview and suggests that disembodied actions have the same theoretical relevance as the actions of any ordinarily embodied human. (shrink)

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 (...) a causal one. I claim that responsibility requires causation and I develop a causal account of agency. This account is particularly apt for addressing the relationship between agency and moral responsibility and sheds light on the causal foundations of moral responsibility. (shrink)

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 (...) of law are briefly reviewed. They are put in confrontation with the points of view of R. Dworkin, H. Hart, and J. Raz, and an attempt is made to clarify them from the perspective of the provided formalization. A brief case study in agent-based modeling and simulation of public policy processes is presented, as an illustration of the way of using situated legal systems, and the proposed operational semantical framework, in a practical application. (shrink)

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 (...) requirements on an appropriate conception of such norms: the actuality and the normativity requirements. On this basis, he enters into a critical discussion of Kelsen's highly influential view of norms, arguing that this view is doomed to failure. In the last part of the paper, the author scrutinizes the more promising “practice theory of norms” by H.L.A. Hart, which, in his view, also suffers from some shortcomings, but may be modified in a way that leads to a conception of social norms providing us with a plausible explication of their actual existence and their normative force. (shrink)

In this thesis I outline a view of primary legislation from a systems perspective. I suggest that systems theory and, in particular, autopoietic theory, as modified by field theory, is a mechanism for understanding how society operates. The description of primary legislation that I outline differs markedly from any conventional definition in that I argue that primary legislation is not, and indeed cannot be, either a law or any of the euphemisms that are usually accorded to an enactment by a (...) parliament. I cite two reasons for such a conclusion. The primary reason for my conclusion is that I see primary legislation as being an output of a particular subsystem of society, while the law is the output of another subsystem of society. I argue that these outputs are the discrete products of separate subsystems of society. I argue that primary legislation should be viewed as a trinity. The first state of this trinity is that, upon enactment, primary legislation is a brute fact in that it is but a thing and the only property of this thing is that of being a text. The second state of this trinity is that following the act of enactment, the thing enacted will be reproduced and this reproduction is a separate thing that will sit in some repository until used. The third state of this trinity is that, upon use, this thing that is primary legislation will be transformed into an object and the user will attribute such functions and attributes to that object as are appropriate to the context within which the object is used. The thing has therefore become an object and an institutional fact. The second reason for my conclusion that primary legislation is not a law relates to the fact that the thing that is primary legislation is a text and the only function of a text is that it is available to be read. That is to say, of itself, a text is incapable of doing anything: it is the reader who defines the status of the text and attributes functions and attributes. Upon use, primary legislation thus becomes a censored input for future action and one of these actions may be some statement by a court of law. I assert that the view of primary legislation that has been accepted within the body politic is the product of the discourse of a particular subsystem of society that I have designated 'the legal practice', and I outline why and how this has occurred. Outlining a view about primary legislation also necessitates outlining a view as to the nature of the law. I assert that the law is a myth and I see this myth as a product of the discourse of the legal practice. I have asserted that although it is the judges that state the law, such statements flow from the discourse of those who practise the law. (shrink)

The paper analyzes the sacred foundations of Western institutional order, moving from an epistemological, historical and legal–aesthetic perspective. Firstly, it identifies an epistemological theory of complexity which, pursuing Hayek’s theory of complexity, Robilant’s notion of informative–normative systems, Popper’s theory of the Worlds, and Dupuy’s theory of endogenous fixed point, will conclusively lead to presenting the hypothesis of World 0 as the World of the foundation of legal thinking, the home of the sacred and the aesthetic. Secondly, it identifies the axiological (...) character of the legal aesthetic as a discipline, a topic that will be taken up in relation to the work of the French historian of canonical law and psychoanalyst Legendre, starting from the analysis of a legal/historiographical context (Corpus Iuris Civilis, Corpus Iuris Canonici, Hobbesian Leviathan, Kelsenian Grundnorm). Thirdly, following Ellul’s thought on secularization, the idea that we now live in a secularized, lay society, lacking in the sacred is revealed as a sort of illusion, the creation of a myth of modernity, only apparently rational. Finally the paper proposes as the task of legal theory the identification of the system of “nomograms” in which the normative message is organized, according to a nonreductionistic approach that forces legal theory to recognize the plurality of the iconic forms of the normative message. The “nomograms” respond to the need of extending the field of legal science to phenomena that the positivist theory of law does not consider important, but which the process of evolution of contemporary society imposes. (shrink)

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 (...) building upon an account of the modern state as a moral agent proper, capable of both culpable moral and legal wrongdoing. I then consider objections to the intelligibility and legitimacy of subjecting states to domestic criminal processes, which primarily find their source in the assumption that such subjection would necessarily involve the state prosecuting, judging, and punishing itself. I argue that whether this (questionable) assumption is sound or not, it does not create the kinds of unsolvable quandaries its exponents think it does. I then move on to reject the distinct, yet related, objection that, at least in aspiring liberal jurisdictions, treating the state as a criminal objectionably involves extending to it various substantive and procedural guarantees that, given its nature and raison d’être, it should not have. Finally, I discuss three central objections to punishing the state. First, that organizations like states do not have the phenomenal consciousness required to suffer punishment. Second, that the constant possibility of dispersion of state punishment amongst individual members stands in the way of its justification. Lastly, that whatever justification there may be for making things harder for the state in response to its culpable wrongdoing, such treatment need not be understood as punishment. While partially conceding the strength of these objections, I strive to loosen their grip in ways that show that justified punishment of the state, meaningfully understood as such, remains a distinct possibility. I conclude by contrasting supposed alternatives to the criminalization of states, and by contending that my analysis leaves us with enough to keep the possibility of state criminalization on the table as a justifiable response to state wrongdoing. (shrink)

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 (...) vis - à - vis the ‘unlawful’ exercise of public powers, when these enter in contrast with the limits imposed by the constitution. (shrink)

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 (...) problems raised by political self‐constitution are linked to self‐attribution, i.e., the conditions under which a collective ascribes legislation to itself. (shrink)

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. (...) L. A. Hart, that propose a systematic distinction between legal and moral species of obligation. (shrink)

Hart's and Kelsen's respective outlooks on the concept of normativity not only differ by the way they explain this concept but also, more importantly, in what they seek to achieve when endeavouring to account for the normative dimension of law. By examining Hart's and Kelsen's models in the light of Korsgaard's understanding of the “normativity problem,” my aim is to emphasise not only their contrasted perspectives, but also the common limit they impose on their theories by dismissing as inappropriate any (...) question regarding the emergence of legal normativity. On the basis of my previous arguments, I shall explain why I deem Raz's analysis of the contrast between Hart's and Kelsen's conceptions of normativity to be misleading. (shrink)

The article focuses on the problem of constitutional symbolism in functionally differentiated societies and its relevance to legal, political, and moral systems. The first part analyses differences between the three systems and their constitutional context. The second part concentrates on the moral symbolic function of modern constitutions and its temporal dimension. It shows that the “good/bad” moral code of constitutions draws on expressive symbolism and transforms it into evaluative symbolism and dogma of morality. The final part analyses the prospective character (...) of modern constitution‐making and its symbolic selectivity regarding the past. The paper concludes by emphasising the systemic pluralisation effect of constitution‐making and the impossibility of constituting systems of “pure” law, morality, and politics. (shrink)

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 (...) artefacts). Then I discuss the contrast between law (the genre of artefacts) and law (the practice). Finally I comment on legality as the name of an ideal for laws and legal systems to live up to. I commend H. L. A. Hart's explanation of the nature of law for investigating these various objects in an integraed way, while nevertheless respecting the distinctions among them. I also criticise some of R. M. Dworkin's work for failing to respect the same distinctions. (shrink)

Should democracts value the freedom to choose? Do people value facing distinct choices when they make collective decisions? ‘Autonomy’ – the ability to participate in the making of collective decisions – is a paltry notion of freedom. True, democrats must be prepared that their preferences may not be realized as the outcome of the collective choice. Yet democracy is impoverished when many people cannot even vote for what they most want. ‘The point is not to be free, but to act (...) freely.’ Rosa Luxemburg Footnotes I am grateful to Jess Benhabib and Bernard Manin for several heated discussions and to Joanne Fox-Przeworski, Dimitri Landa, Avishai Margalit, and Ignacio Sanchez-Cuenca for comments. Special thanks are due to the editor of this journal, Geoffrey Brennan, for pushing me further than I was prepared to go. (shrink)

The mark of ‘the political’, according to Bernard Williams, lies in a society finding an answer to the ‘first political question’—the ‘Hobbesian’ question of how to secure ‘order, protection, safety, trust, and the conditions of cooperation’. It is first because ‘solving it is the condition of solving, indeed posing, any others’. Williams also argues that a political order differs from an ‘unmediated coercive’ order in that it seeks to satisfy the ‘Basic Legitimation Demand’ that every legitimate state must satisfy if (...) it is to show that it wields authority over those subject to its rule. To meet that demand the state ‘has to be able to offer a justification of its power to each subject whom by its own lights it can rightfully coerce under its laws and institutions’. My paper argues that this set of issues is the central concern of legal theory and that, suprisingly, it is resources in the legal positivist theories of Hans Kelsen, H. L. A. Hart and Joseph Raz that can help us to see how a political order has to be constituted as a legal order before it becomes capable of answering the BLD. The argument is that the idea of acceptance in positivist legal theory imports the main components of the social contract tradition, which are necessary if law is to be understood as a matter of authority. Once imported, the central question for philosophy of law becomes the legal subject’s question, ‘But how can that be law for me?’. (shrink)

‘On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality’. B. R. Ambedkar’s famous last speech to the Constituent Assembly on 25 November 1949 still resonates within contemporary Indian constitutional law, and even more so his following interrogation: ‘how long shall we continue to live this life of contradictions?’ Prima facie societal, the contradiction is however also a temporal (...) one, Indian constitutional law being founded on both the British traditional idea of ‘continuum’ and the American inspired revolutionary principles of ‘pursuance’ of a novel legal and social order. Two recent Indian Supreme Court decisions pertaining to the de-criminalisation of same sex relations ( Navtej Singh Johar v. Union of India) and for the right of menstruating women to enter the Sabarimala Temple in Kerala ( Indian Young Lawyers Association v. Union of India) offer through their differing and sometimes dissenting opinions a glimpse at those temporal contradictions. Through an analysis of both decisions and in particular that of Chandrachud J. and Malhotra J.’s judgements, this article seeks to highlight two radically differing conceptions of temporality applied to constitutional issues, which can themselves be linked back to the transposition of the legal positivist discourse in India within the colonial era: on the one hand, an attempt to continue Common law’s empirical-based tradition and on the other hand, an (apparently) a-historical perception of Law drawn from neo-Roman civilian legal discourse and later normative positivism. If both branches of legal reasoning aim at protecting minorities’ rights, the value they inscribe to History within the realm of Law cannot be further apart. (shrink)

This article critically focuses on the methodological aspects of Scott Shapiro’s book Legality . Indeed Shapiro’s book sets out several original theses about not only the nature of law and the main problems of jurisprudence, but also about how the nature of law can be discovered by jurisprudence. In this sense, the method of inquiry adopted by Shapiro can be considered as one of the most challenging outcomes of his research. The article is divided into two parts. In the first (...) two sections I shall analyze Shapiro’s jurisprudential approach by focusing on its resort to metaphysical vocabulary, conceptual analysis, constructive reasoning, and institutional explanation of law. In the following sections I will consider some of the problems that this approach gives rise to, and outline an alternative view on the nature of law stimulated by the discussion of Shapiro’s work. (shrink)

There are two possible ways to understand form and substance in legal reasoning. The first refers to the distinction between concepts and their applications, whereas the second concentrates on the difference between authoritative and non-authoritative reasons. These approaches refer to the formalistic and positivistic conceptions of the law, the latter being the author's point of departure. Nevertheless, they are both helpful means of analysis in legal interpretation. Interpretation is divided into formal and substantive justification. They have certain functions and they (...) are utilized in interaction. Authoritative reasons and formal reasoning constitute the necessary point of departure. However, substantive reasons are also necessary in order to justify choices included in interpretation. In addition to formal and substantive reasoning, the role of legal concepts is analysed. (shrink)

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.

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 (...) should determine the proper scope of the criminal law. (shrink)

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 (...) well as the claims of many legal theorists who have followed him, depend on a contested view of the nature of legal theory. If the task of a theory of law, as Joseph Raz and others have influentially argued, is to identify the essential features of the concept of law, then the theoretical possibility, if not the empirical reality, of a sanction-free legal system is what is most important. But if the task of a theory of law is to provide philosophical and theoretical illumination of law as it exists and as it is experienced, then a theory of law that fails to give a central place to law's coercive reality may for that reason be deficient as a theory of law. The question of the soundness of the Austinian account, therefore, may be a function of the answer to the question of what a theory of law is designed to accomplish. (shrink)

En el presente trabajo se aborda el estudio del concepto de ‘sujeto constituyente’ y, más precisamente, la identificación y análisis de sus tres propiedades definitorias: la propia condición ‘constituyente’ y no ‘constituida’ del sujeto; la no-sujeción a deberes ni a límites jurídicos; y la autoatribución de una competencia normativa ‘originaria’. Partiendo de la premisa de que este concepto mantiene una relación necesaria con el concepto de ‘poder constituyente’, cada una de esas propiedades es estudiada bajo una perspectiva de análisis centrada (...) en el fenómeno de producción normativa ocasionado por la manifestación de dicho poder. Asimismo, en relación con cada propiedad analizada se identifican posibles argumentos en sentido contrario que problematizarían su postulación, y se ofrecen las correspondientes respuestas de cara a una labor de clarificación conceptual. Finalmente, se indican las razones que dan cuenta del carácter políticamente no comprometido de este presupuesto subjetivo del poder constituyente, bajo un punto de vista valorativamente neutral. (shrink)

This dissertation addresses the issues of the indeterminacy of law and judicial discretion in the decision of the quaestio facti. It is composed of four papers: In the first paper, I develop an account of legal indeterminacy called the ‘systemic indeterminacy’ thesis. This thesis claims that legal indeterminacy and judicial discretion are the results of features of the structure of typical rational legal systems such as interpretative codes with a plurality of interpretative directives, the non-redundancy clause, and the non-liquet rule. (...) In the second paper, I criticise two approaches that support the thesis that law ought to ascertain the truth of the quaestio facti: the motivation approach and the legal approach. First, I advance two objections to a version of the motivation approach that I call the ‘behaviour-guidance’ theory. The first objection claims that the appearance of ascertaining the truth is enough to produce the psychological state of compliance. The second objection claims that the indeterminacy of law brings about the impossibility of an ex ante knowledge of the content of the law, thus, the governed cannot gain knowledge of the law’s efforts to ascertain the truth. Second, I explore if the legal approach is plausible. I provide five different legal reasons to support the claim that the law ought to ascertain the truth of the quaestio facti. However, I show that none of these reasons are particularly convincing. In the third paper, I advance three objections to the idea of reducing the indeterminacy of the standard of proof rules by adding new legal rules for their interpretation. The first objection claims that these interpretative rules, do not provide any guidance to the trier of fact to set the quantum of evidence. The second objection claims that insofar as these interpretative rules are posited in a natural language they are also indeterminate. The third objection claims that these interpretative rules are redundant legal rules. In the fourth paper, I develop the thesis that standards of proof are competence norms that grant competence to triers of fact to set the quantum of evidence in a case-by-case manner. (shrink)

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 (...) nature of law. I argue that the Scandinavians differ from legal positivists in that they reject the idea that there are legal relations, that is, legal entities and properties, and to varying degrees defend the view that law is a matter of human behavior rather than legal norms, and that they do not and cannot accept the idea that there is a ‘world of the ought’ in Kelsen's sense. I also argue, more specifically, that the objection to non-naturalist theories raised by the Scandinavians—that there is and can be no connection between the higher realm of norms and values and the world of time and space—is convincing, and that Kelsen's introduction of a so-called modally indifferent substrate does nothing to undermine this objection. In addition, I argue that the Scandinavians can account for the existence of legal relations that do not presuppose the existence of morally binding legal norms by embracing conventionalism about the existence of the sources of law, while pointing out that in doing so they would also be abandoning their legal realism for legal positivism. Finally, I argue that the implications for legal scholarship of the realist emphasis on human behavior instead of legal norms is not well explained by the realists and appear to amount to little more than a preference for teleological interpretation of legal norms. (shrink)

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that (...) may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between law and morality, and has even been tempted by natural law arguments in developing his theory of jurisprudence (see Part IV), Kelsen is more receptive to arguments drawn from legal and political realism. Yet Habermas is hardly oblivious to these arguments, as can be seen from his recent acknowledgment that human rights that secure subsistence and development depend on ‘global domestic policy’ for their full enjoyment. This acknowledgment, I submit, brings Habermas’ legal philosophy closer to Kelsen’s monistic view that a supranational human rights regime must regulate political as well as purely legal matters (Part III). Given this stronger analogy between domestic and global institutions of governance, I argue (Part IV) that a global human rights regime must also incorporate features of constitutional review. Conceding this point, however, raises further questions about the insulation of international law from so-called extra-legal (political) influences. I conclude that not only do multicultural differences in understanding human rights (conflicts between legal paradigms) generate political problems for international courts but so do competing subsystems of international law. (shrink)