In this short paper, I argue that legal philosophers ought to focus more than they have done so far on problems of legal reasoning. Not only is this a field with many philosophically interesting questions to consider, but it is also, in my estimation, the field in which legal philosophers can contribute the most to both the study and the practice of law. For even though reasoning and interpretation are at the center of what legal practitioners and legal scholars do, (...) neither legal practitioners nor legal scholars reason with the same care and precision as philosophers do. Against this background, I suggest that the following three types of questions regarding legal reasoning are especially worthy of serious consideration. The first is that of the possible relevance of the theory of reasons holism to legal reasoning in general. The second is the question of how to analyze legal statements in a way that does not undermine the rationality of legal reasoning. And the third is the question of whether legal arguments are to be understood as deductive arguments, or as inductive arguments, or both, and if so how. (shrink)

Legal norms are an invention. This paper advances a proposal about what kind of invention they are. The proposal is that legal norms derive from rules which specify role functions in a legal system. Legal rules attach to agents in virtue of their status within the system in which the rules operate. The point of legal rules or a legal system is to solve to large scale coordination problems, specifically the problem of organizing social and economic life among a group (...) of people and their successors, though not every legal rule pertains to a coordination problem. The framework for thinking about legal norms that I describe is a framework for thinking about institutions and policies more generally. The idea is to show that legal norms are a species of institutional norm. There are two central ideas. The first is the idea of a role in an institution. The second is the idea of proxy agency. Proxy agency involves one agent or group acting under the authorization of another agent or group (perhaps subsuming it) in a way that makes the actions of the proxy count as actions (under a description) of the individual or group for which it is a proxy. We get the characteristic structure of a legal system by conceiving of an institutional group, itself conceived of as a set of interlocking roles realized in individuals, as having one or more roles for proxy agents who are authorized by the group to make policy for the group. The set of rules governing the basic constitution of the group and spelling out the powers of the policy proxies determine fundamental norms for the group with specific role responsibilities attaching to particular positions in institutional arrangements. The policies determine further norms whose force derives from the fundamental norms. We must then say some further things to distinguish institutions and policies which we wish to designate as legal. (shrink)

Imperatives cannot be true or false, so they are shunned by logicians. And yet imperatives can be combined by logical connectives: "kiss me and hug me" is the conjunction of "kiss me" with "hug me". This example may suggest that declarative and imperative logic are isomorphic: just as the conjunction of two declaratives is true exactly if both conjuncts are true, the conjunction of two imperatives is satisfied exactly if both conjuncts are satisfied—what more is there to say? Much more, (...) I argue. "If you love me, kiss me", a conditional imperative, mixes a declarative antecedent ("you love me") with an imperative consequent ("kiss me"); it is satisfied if you love and kiss me, violated if you love but don't kiss me, and avoided if you don't love me. So we need a logic of three -valued imperatives which mixes declaratives with imperatives. I develop such a logic. (shrink)

We shall introduce a set of fundamental legal concepts, providing a definition of each of them. This set will include, besides the usual deontic modalities (obligation, prohibition and permission), the following notions: obligative rights (rights related to other’s obligations), permissive rights, erga-omnes rights, normative conditionals, liability rights, different kinds of legal powers, potestative rights (rights to produce legal results), result-declarations (acts intended to produce legal determinations), and sources of the law.

Algunos de los más relevantes filósofos del derecho de los últimos años, como Carlos S. Nino y Ronald Dworkin, han defendido que hay una pluralidad de conceptos de Derecho. Scott Shapiro ha sostenido una posición especialmente relevante acerca de ello: la palabra ‘Derecho’ es sistemáticamente ambigua, pues a veces designa un conjunto de normas y otras veces una organización social. Esta es precisamente la tesis criticada en el trabajo. Se argumenta, basándose en determinada literatura filosófica acerca de los conceptos, que (...) los conceptos de objetos sociales de carácter intencional contienen una dimensión social y una dimensión significativa, normativa en el caso del derecho. El mismo concepto de Derecho expresa una dimensión social y una normativa imbricadas entre sí. Some of the most relevant legal philosophers in the last decades, as Carlos S. Nino and Ronald Dworkin, have defended the idea that there is a plurality of concepts of law. Scott Shapiro has sustained this account in a particularly relevant way: the word ‘law’ displays a ubiquitous ambiguity, sometimes designates a set of norms and other a social organization. This is precisely the thesis which is criticized in the paper. It is argued, from a certain philosophical literature about the concepts, that concepts of social objects of intentional character contain a social dimension and a meaning dimension, normative in the case of the law. That is to say, the concept of law expresses a social dimension and a normative dimension intertwined. (shrink)

The purpose of this paper is the clarification of some methodological problems concerning Rawls’ theory of justice. The first part seeks to make more precise Tugendhat’s distinction between 1st-person-theory and 3rd-person-theory. Rawls’ theory fulfills all criteria for 1st-person-theories. In the second part Rawl’s coherence model for the justification of norms („reflective equilibrium“) is critically analyzed and opposed to the hypothetical decision which individuals are to make in the original position (contract model). It is shown that the conception of reflective equilibrium (...) is in various aspects mistaken. In conclusion a problem is indicated which Rawls has not satisfactorily resolved: The veil of ignorance is supposed to guarantee that the decision for the basic principles of social justice is unanimous. Nevertheless it would appear that the individuals in the original position either have too little empirical knowledge in order to make a rational decision, or they have too much knowledge in order to come to an unanimous decision. The veil of ignorance is either too fine or not fine enough. (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)

The article presents possible applications of Paul Ricoeur’s theory in interpretation of legal texts and legally relevant human action. One should notice that Paul Ricoeur developed a comprehensive interpretation theory of two seemingly distant phenomena: literary texts and human action. When interrelating these issues, it becomes possible, on the basis of Ricoeur’s work, to construct a unified theory of the interpretation of legal texts and of legally relevant human action. What is provided by this theory for jurisprudence is the possibility (...) of formulating a comprehensive theory of application of law, well established in the ontology of the recipient of the legal text. It should be emphasised that the resulting benefits, outlined in the article become particularly noticeable when set against the background of the methodological weaknesses of legal positivism, concerning both the interpretation of law and a syllogistic model of its application. (shrink)

This article paradoxically tries to come closer to an idea of justice with the help of the destructive — anything but nihilistic — criticism thereof by Hans Kelsen. It argues that his relativistic approach, in which this idea undergoes a metamorphosis to become a realisable value of a social order, brings us closer to an obvious and objective form of justice that is almost taken for granted. Just in our liberal and plural democracy this approach might prove to be of (...) more value than a transcendental theory that passes speculative judgements on the essence of absolute justice, about which we are unable to come to an agreement. (shrink)

En este trabajo sostengo que el alterum non laedere es el principio rector de la responsabilidad civil, y sin él muchas de las características de nuestros sistemas de derecho de daños se tornan ininteligibles. Una vez que se aprecia el rol que cumple el alterum non laedere en el razonamiento jurídico puede comprenderse que la práctica de la responsabilidad civil está articulada sobre la evitación de daños y solo subsidiariamente sobre la reparación. Esta tesis, además, tiene importantes consecuencias dogmáticas.

Robert Alexy's claim that law of necessity has a dual nature raises many interesting philosophical questions. In this article, I consider some of these questions, such as what the meaning of the correctness thesis is, whether Alexy's discourse theory supports this thesis, and whether the thesis is defensible; whether Alexy's argument from anarchy and civil war supports the claim that law of necessity has a real dimension; and what the implications are of the use of moral arguments, such as the (...) argument from injustice, for the status of Alexy's inquiry. (shrink)

A critical analysis of Kelsen’s theory leads to a broad concept of custom, which covers diverse types of customary norms, where the always required conviction of legal bindingness depends on different types of factual and normative reasons. In it we should include a strict concept of custom or legal usage, derogating custom, custom of general international law, custom that establishes an unwritten constitution, custom that establishes a new written constitution, judicial custom which creates a rule of precedent and custom newly (...) expressed in the judicial application of customary rules. The basic norm could be formulated as a constitutive norm: ‘If the norms created through the first historical constitution are effective, then the first historical constitution are valid.’ It is thus a customary constitutive rule that recognizes the first historical constitution as valid law. Norms which establish sources of law are constitutive rules, they can be customary norms or legislated norms, but if they are legislated, they have their validity recognized by, directly or indirectly, a constitutive customary norm. By using a broad concept of custom as a conventional practice, Hart implies that general recognition of a customary rule, together with the practice that accompanies it, are sufficient conditions of validity. A doctrine of recognition that is arrived at by means of criticism and a rational reconstruction of the doctrines of Kelsen and Hart regains the essential theses of the traditional recognition theory of Bierling and Engisch. (shrink)

Legal Information Retrieval (IR) research has stressed the fact that legal knowledge systems should be sufficiently capable to interpret and handle the semantics of a database. Modeling (expert-) knowledge by using ontologies enhances the ability to extract and exploit information from documents. This contribution presents theories, ideas and notions regarding the development of dynamic electronic commentaries based on a comprehensive legal ontology.

El presente trabajo presenta una interpretación de los enunciados internos hartianos basada en la filosofía del lenguaje de Wittgenstein y la metodología del conocimiento social de Winch. Según esta lectura, la distinción entre enunciados internos y externos representa una forma de contextualismo en la teoría analítica del derecho. En el trabajo se defiende que el discurso descriptivo sobre lo que en un ordenamiento jurídico es obligatorio, permitido o prohibido es siempre un discurso interno respecto de los criterios de pertenencia de (...) ese ordenamiento. Además, se argumenta que esta forma de discurso interno no tiene una función ideológica sino cognoscitiva y permite aún distinguir entre cuestiones de validez y de legitimidad de las normas. (shrink)

Making a connection between ‘post-modernism’ and post-truth has by now become a standard trope, both within academia and popular discourse, despite post-truth’s only recent emergence as a concept. Such claims are often rather vague and fanciful and lack an altogether credible account of either phenomenon in many cases. This Chapter argues however that within a legal context, there is the emergence of a legal post-truth which is the direct consequence of a concrete form of post-modernity within legal practice and thought. (...) While law may be called upon to engage in judgments of ‘truth’ in numerous interesting ways, it does not itself have any particular form of privileged access to the truth of statements or allegations, even though it is often treated as doing so. However, the most persistent question which law must deal with, and indeed the most persistent question within legal philosophy, relates to a deeper form of inquiry into truth: the question of legal truth. In simple terms this refers to the correctness of any particular proposition of law. Within legal theory, this expands to the larger question of what makes, in general, any legal proposition valid, or true. Reflecting upon legal scholarship through the lens of truth reveals that theories of law can be broken down into two broad and radically distinct categories. On the one hand, there exist empirical accounts of law which fundamentally understand questions of legal truth as social questions whose answers are empirically demonstrable. On the other hand, there are ‘idealist’ accounts of law which view legal content, and hence truth, as existing in some way or other in a manner which transcends social practice and which is autonomous from it. Both of these classical accounts, while radically different, share an interesting paradox: they see truth in law as an objective fact, but one which is fleeting and distant, far from the paradigm of legal certainty upon which the ideology of law is partly based. However, such accounts of legal truth share many other unstated aspects, and are largely based upon ideas which place the separateness and completeness of legal systems at their heart, providing either a unified ideal or a unified empirically observable social practice. However, they are share a common flaw, namely the failure to account for what might be called a post-modern phase of development in law, in which ordinary legal questions now regularly require the complex and non-hierarchical interaction of competing legal systems with different ‘truths’ and different ways of arriving at such truths. Such phenomena are commonly referred to as legal or, at times, constitutional ‘pluralism’. This post-modern turn within law has also produced therefore what we might call a form of post-truth within law. This is particularly significant because it places under great strain both the empirical and ideal accounts of legal truth and require us to re-elaborate an account of what makes a legal proposition true. From certain perspectives, this legal post-truth shares certain important aspects with the cultural phenomenon of post-truth, namely its apparently capricious and deracinated nature. However, it is argued in this Chapter that, in the legal context at least, post-truth allows for the transcendence of the empirical/ideal divide and the revealing of deeper forms of legal truth and our ability to account for them through theory or, put more simply, explanation. Upon greater reflection, legal truth is generated by the very forms of argument, or modes, which allow access to it. Such forms of argument exist also to produce legal truths outside and between legal orders where these appear to conflict or collide. While some legal scholars and others claim that such pressures on structures of knowledge reveal the end of the potential for law to generate truth, it is argued here that, on the contrary, they require a more open and more transparent use of the pure methods and modes of reason which both reveal but also generate legal truth in the first place. This is relevant to post-truth more generally in one specific way, despite the numerous idiosyncrasies of legal truth and knowledge: when assertions of truth within structures of power seem to come to embody the perspectivism and relativism used as methods of deconstruction, the post-modern and deconstructionist projects themselves require radical change: they stay true to their goal of deconstructing structures and discourses of power by applying the classical epistemologies which are rejected by those in power. Just as legal outcomes which are asserted rather than reasoned or justified are most convincingly deconstructed through sober legal modes, so can the post-modernist project find purpose in a world where dominant epistemes seem to have come to embody a simplistic version of post-modernist critiques. (shrink)

This article endeavors to describe and explain the constitution of modernity, its different trajectories, and its ongoing crisis using the Weberian concept of ‘legitimate order’, and by considering the changing relations between orders. One possible basis for the interpretation of the changing constitution of modernity – which involves, most significantly, a move beyond the great public/private dichotomy – is drawn from economic theory, or rather theories, of goods. The ability of certain orders to produce certain types of goods and to (...) allocate them defines different types of society; in different societies, the same good will differ in nature and occupy a place within different property regimes. Changing relations can also be analyzed on the basis of the capacity of an order to impose upon others its negative externalities, and to manage effectively the production and allocation of its characteristic goods at different territorial scales. (shrink)

Nowadays, on national and international levels, the law has been increasingly considering local and traditional communities’ role for achieving conservation. In Brazil, for instance, one can see how recent legal rules promote benefits for those local groups who practice low environmental impact activities. Nevertheless, regarding traditional fishing communities that live on the coastal zone, a region where many protected areas have been created lately in Brazil, the positive social effects of those measures are often undermined by the economic and political (...) pressure they suffer. This becomes particularly clear when the problem is seen under the different grades of citizenship people face in Brazil: that is, considering how people can be over-included in the legal system to have mainly access to its benefits, while others are under-included to be mainly dependent on it. It seems that Brazilian coastal fishing communities fall into the latter case, and that would explain how they are subject to many different types of restrictions and responsibilities due to the new legal instruments that are being developed to protect such areas, sometimes causing, for instance, a pressure to remove them from their homes. Conservation in this context, then, is to be understood beyond legal texts and, especially, under the evaluation of the social conditions these populations are submitted to. Therefore, this paper sketches the legal development of Brazilian marine protected areas, points out some examples of conflicts involving traditional fishing communities affected by conservation policies, and conceptualizes the relations of over- and under-inclusion they can be considered as part of. (shrink)

El presente texto ofrece las líneas fundamentales de la interpretación que Julius Ebbinghaus realiza de la filosofía del derecho de Kant. En primer lugar, expone la famosa “tesis de la independencia” presentada en numeroso trabajos por J. Ebbinghaus. En segundo lugar, centra su atención en el diagnóstico que hace J. Ebbinghaus de los casos de “injusticia extrema” y se pone en relación la fórmula de Radbruch con la filosofía del derecho de Kant. Por último, y frente al positivismo jurídico, J. (...) Ebbinghaus sitúa los límites de la dominación política en el derecho de la humanidad. Las consecuencias normativas de dicho derecho se ponen de manifiesto en caso de injusticia extrema, cuyo ejemplo paradigmático lo ofrece la Alemania Nacionalsocialista. A partir la ley de la humanidad, Julius Ebbinghaus ofrece una justificación kantiana del concepto de delitos de lesa humanidad. (shrink)