Lawyers pretend as if the process of application of laws, as well as its outcome, could be an analytic-deductive derivation; especially law students learn that legal decision-making is primarily a logic process. But we know that application of laws depends on analytic-logical as well as on voluntaristic (wilful) elements. Exact relations between these components are unknown and will be unknown. At most German law schools students as the most important imperative tool learn the so called “Auslegung” through the use of (...) theoretical instruments, which do not reflect the interpretation of law practice. These mentioned causes result in irrationality of legal decision-making. In order to achieve more rationality in the process and result of legal decision-making, the contribution makes four suggestions regarding legal methodology and legal education. These proposals consist of few long-term pragmatic approaches to more rationality of legal decision-making. (shrink)

Daniel Kofman | : La littérature philosophique récente concernant les droits juridictionnels suppose qu’on puisse les justifier par une « théorie des droits territoriaux », sans faire appel à une théorie de l’autodétermination. Or les principes d’autodétermination des peuples devraient déterminer les principes des frontières juridictionnelles, et non le contraire. Les « droits territoriaux » sont essentiellement des droits de gouvernance, lesquels découlent eux-mêmes des principes d’autodétermination. Pour défendre ces thèses, je critique les arguments de Brilmayer, Simmons, et Stilz. | (...) : Recent philosophical literature on jurisdictional rights assumes they can be justified by a “theory of territorial rights” without a theory of self-determination. However, principles of self-determination of peoples should determine principles of jurisdictional boundaries, not the contrary. “Territorial rights” are essentially rights of governance, which derive from principles of self-determination. I support these theses by criticising arguments of Brilmayer, Simmons and Stilz. (shrink)

Montesquieu's Considérations sur les causes de la grandeur des Romains et de leur décadence (1733/1734) is a methodological exercise in causal explanation on the meso-level applied to the subject of the military rise and fall of Rome. Rome is described as a system with contingent initial conditions that have a strong path-determining effect. Contingent and plastic initial configurations become highly determining in their subsequent operation, thanks to self-reinforcing feedback loops. Montesquieu's method seems influenced by the ruthless commitment to efficient causality (...) and the reductionism of seventeenth-century mechanicist philosophy; but in contrast to these predecessors, he is more interested in dynamic processes than in unchangeable substances, and his use of efficient causality in the context of a system approach implies a form of holism that is lacking in his predecessors. The formal and conceptual analysis in this article is in many ways complementary with Paul Rahe's recent predominantly political analysis of the Considérations. At the same time, this article points to a problem in the works on the Enlightenment by Jonathan Israel: his account stresses a one-dimensional continuum consisting of Radical, Moderate and Counter-Enlightenment. This invites Israel to place the combined religious, political and philosophical views of each thinker on one of these three points. His scheme runs into trouble when a thinker with moderate religious and political views produces radical philosophical concepts. Montesquieu's Considérations is a case in point. (shrink)

Taking inspiration from a distinction Kant drew between the way power is organised, and the manner in which it is exercised, this analysis directs attention to the consolidation of an autocratic style of politics in Europe. The co-existence between an autocratic style of rule and preserved democratic organisation of power, which prevents a legitimation crisis, is explained in terms of an altered legitimacy relationship between public authority and citizens. This ultimately allows a discrepancy to emerge between public authority’s increased capacity (...) for policy action and reduced social responsibility for the consequences of that action. (shrink)

El propósito de este artículo es analizar el concepto de mentira moderna u organizada en la obra de Hannah Arendt. Con agudeza, Arendt pone de relieve una experiencia particular del Mundo Moderno, aquella en la que una comunidad puede falsear deliberadamente realidades conocidas por todos y tener la mentira como principio político. Esta comprensión pone al concepto en un registro diferente del tradicional de los arcana dominationis. Nuestro argumento intenta clarificar analíticamente el concepto, señalar su pertinencia y vincularlo a una (...) idea de auto-institución de las sociedades entendidas como colectividades históricamente activas. (shrink)

In the literature investigating the long history of appeals to ‘nature’, in its multiple meanings, for rules of conduct or justification of social order, little attention has been paid to a long-standing tradition in which medical and physiological arguments merged into moral and social ones. A host of medical authors, biologists, social writers and philosophers assumed that nature spoke its moral language not only in its general economy, but also within and through the body. This is why, for instance, many (...) critics of Malthus argued that physiological self-regulating mechanisms ensured a spontaneous adaptation of fertility to the circumstances. Beliefs in a beneficent economy of nature persisted when Providence was replaced by evolution. To some, they provided reasons for hope even when others worried about ‘unfit’ members of society increasing at a quicker rate than ‘fit’ ones. The nerves gradually replaced food and blood as moral mediators between society and the body. When faith in bio-social progress was shaken by degeneration theories, and fin de siècle anxiety concerned underpopulation rather than overpopulation, not an insignificant proportion of those who emphasised the bad effects of modern civilisation resorted to ideas and arguments based on a view of the body in which physiology and morality worked together. A common language and common assumptions linked the Kulturpessimisten to their optimistic eighteenth-century colleagues, in spite of their different forecasts. The present paper traces continuities and discontinuities in the operation of a persistent set of interrelated ideas and assumptions on the coalescence of the physiological and the moral across disciplines and contexts. (shrink)