The theory of rights is crucial as a means of relieving the tension between basic rights and democracy, and as a means of resolving the problem of allocating competence between the constitutional court and the legislature. To some theorists, no tension between basic rights and democracy exists, for the latter presupposes the former. To others, among whom I include myself, tension does exist, for basic rights, in lending protection to certain persons and groups, limit the possibilities of political decision. In (...) this connection it is important to take up the problem of the necessary conditions for realizing basic rights. One of these conditions concerns the delimiting of the scope of institutional action that is found, so to speak, in the space between the constitutional justices and the legislature, the latter as representative of the popular will. (shrink)

The use of vague language in law has important implications for legal theory. Legal philosophers have occasionally grappled with those implications, but they have not come to grips with the characteristic phenomenon of vagueness: the sorites paradox. I discuss the paradox, and claim that it poses problems for some legal theorists (David Lyons, Hans Kelsen, and, especially, Ronald Dworkin). I propose that a good account of vagueness will have three consequences for legal theory: (i) Theories that deny that vagueness in (...) formulations of the law leads to discretion in adjudication (including Dworkin's) cannot accommodate “higher-order” vagueness, (ii) A legal theory should accept that the law is partly indeterminate when it can be stated in vague language, (iii) However, the traditional formulation of the indeterminacy claim, that a vague statement is “neither true nor false” in a borderline case, is misconceived and should be abandoned. (shrink)

In this book, I present the results of an investigation which began with an extended stay at Oxford's Balliol College during the first half of 1995. My visit to Oxford was made possible by a grant from the Spanish Ministerio de Educaci6n y Ciencia. My sincere thanks go to Joseph Raz who served as my supervisor in Oxford. For several points of the present study, conversations with Timothy Endicott in Oxford were also of great help. The book is part of (...) a larger project of investigation, directed by Albert Calsami glia, which is a joint effort of a group of legal philosophers from the Universitat Pom peu Fabra and the Universitat de Girona, and which also receives financial support from the Spanish Ministerio de Educaci6n y Ciencia. An earlier version of the manuscript was presented in June 1996 to the selection committee for a tenured professorship in Legal Philosophy at the Universitat de Girona. The members of the committee were Francisco Laporta, Albert Calsamiglia, Gregorio Peces-Barba, Camilo J. Cela Conde, and Francesca Puigpelat. I am grateful to all of them for their comments, which have been extremely useful in preparing the final ver sion of this book. (shrink)

The paper provides a conceptual distinction between evidence assessment criteria and standards of proof. Evidence must be assessed in order to check whether it satisfies a relevant standard of proof, and the assessment is operated with some criterion; so both criteria and standards are necessary for fact-finding. In addition to this conceptual point, the article addresses three main questions: Why do some scholars and decision-makers take assessment criteria as standards of proof and vice versa? Why do systems differ as to (...) criteria and standards? How can a system work if it neglects one of these things? The answers to the first and second question come from the historical and procedural differences between the systems. The answer to the third focuses on the functional connection between criteria and standards. (shrink)

This article investigates the concept and the construction of judicial discretion. The strengths and weaknesses of both Dworkin and Hart are analysed, and in view of these, it is argued that a full picture of judicial discretion is between the two extremes. Thus, a moderate theory of judicial discretion is maintained which is based on achievements by Robert Alexy (2002b). The article develops a balancing model of discretion and relates it to the theory of legal argumentation. The limits of discretion (...) and the relation between structural (strong) and epistemic (weak) discretion are addressed in detail, both with illustrations from the jurisdiction of the German Federal Constitutional Court. (shrink)

Near the end of the last century, some legal philosophers adapted the so called causal theories of reference to solve internal problems in legal theory. Among those philosophers, Nicos Stavropoulos adjusted Hilary Putnam’s semantic externalism claiming it as a better philosophical view than legal positivism defended by Herbert Hart. According to him, what determines the correct application of a legal rule must be determined by the objects themselves. In that case, what determines the reference of legal terms is an issue (...) to be solved by the best theory developed. However, this is not the case necessarily: Hart’s model can reach to the same conclusions as an externalist adjustment of law. Furthermore, the epistemic criteria required by Putnam to deal with value judgements are also acceptable in a positivist model. This paper presents the central thesis of Putnam’s semantic externalism, with Stavropoulos adaptations to law, and defends that Hart’s approach to deal with legal rules and Putnam’s approach to deal with language rules can converge. (shrink)