Since Gallie introduced the notion of essentially contested concepts, it has given rise to considerable debate and confusion. The aim of this paper is to bring clarity to these debates by offering a critical reconstruction of the notion of essential contestedness. I argue that we should understand essentially contestable concepts as concepts that refer to ideals or to concepts and phenomena that can only be fully understood in light of ideals and that are, as a consequence, open to pervasive contestation. (...) Moreover, some concepts are second-order essentially contested: it may be a matter of ongoing dispute as to whether they should be regarded as essentially contested. The concept of law is an example. Some authors argue that it is ideal-oriented, whereas others claim it is not. This insight that ‘law’ is a second-order essentially contested concept may explain some of the disagreements between legal positivism and its various opponents. (shrink)

Ethical analysis may result in recommendations for legal reform. This article discusses the problem of how academic researchers can go from ethical normative judgments to recommendations for law reform. It develops a methodological framework for what may be called ‘ethical transplants’: transplanting ethical normative judgments into legislation. It is an inventory of the issues that need to be addressed, but not a substantive normative theory. It may be especially helpful for Ph.D. students and beginning researchers working in interdisciplinary projects combining (...) ethical and legal analysis.I distinguish three stages in the process from ethics to law: translation, transformation, and incorporation. The latter stage can be divided into three clusters of issues, these being legal, empirical, and normative ones. Most of the philosophical literature on the legal enforcement of morals focuses on the normative issues. My aim is to broaden the perspective in two ways. First, I show that this is only one relevant issue and that we should address legal and empirical issues and the processes of translation and transformation as well. Second, I argue that we should pay more attention to pluralism and variation. (shrink)

Maria Márkus took special interest in the concept of civil society that was revived by East European dissidents and incorporated it into her account of the fundamental ideals of modernity. Modern societies were civil to the extent that they possessed a ‘public sphere’ that incorporated structures and mechanisms of action and communication able to form, articulate and press the interests and needs of the society on public agencies; and to defend them, if the state ignores or seeks to override them. (...) This article discusses the relationships in her thought between civility, civil society and decency. She sees the first as a condition for the second, but not a part of it, while decency is both an accomplishment and attribute of a civil society in good shape. For her, a decent society is the ideal to strive for, a civil society the way to get there, civility a necessary step toward civil society, and therefore too for a decent one, but not a huge step. This article suggests that civility deserves more than the lukewarm approval Maria bestowed upon it. In particular, the piece tries in some measure to bridge the gap she saw between civility, on the one hand, which she appreciated in a kind of ‘two cheers’ way, and civil and decent societies, on the other, which received her full three-cheers. (shrink)

Photomechanical reprint of papers from 1970 to 1992 mostly in English, some in German or French: Foreword 1–4; LAW AS PRACTICE ‘La formation des concepts en sciences juridiques’ 7–33, ‘Geltung des Rechts – Wirksamkeit des Rechts’ 35–42, ‘Macrosociological Theories of Law’ 43–76, ‘Law & its Inner Morality’ 77–89, ‘The Law & its Limits’ 91–96; LAW AS TECHNIQUE ‘Domaine »externe« & domaine »interne« en droit’ 99–117, ‘Die ministerielle Begründung’ 119–139, ‘The Preamble’ 141–167, ‘Presumption & Fiction’ 169–185, ‘Legal Technique’187–198; LAW AS LOGIC (...) ‘Moderne Staatlichkeit und modernes formales Recht’ 201–207, ‘Heterogeneity & Validity of Law’ 209–218, ‘Leibniz & die Frage der rechtlichen Systembildung’ 219–232, ‘Law & its Approach as a System’ 233–255, ‘Logic of Law & Judicial Activity’ 258–288, ‘Kelsen’s Pure Theory of Law’ 289–293, ‘The Nature of the Judicial Application of Norms’ 295–314; LAW AS EXPERIENCE ‘The Socially Determined Nature of Legal Reasoning’317–374, ‘The Ontological Foundation of Law’ 375–390, ‘Is Law a System of Enactments?’ 391–398, ‘The Uniqueness of National Legal Cultures’ 399–411, ‘Institutions as Systems’ 413–424; LAW AS HISTORY ‘From Legal Customs to Legal Folkways’ 427–436, ‘Anthropological Jurisprudence?’ 437–457, ‘Law as a Social Issue’ 459–475, ‘Law as History?’477–484, ‘Rechtskultur – Denkkultur’ 485–489; w/ Curriculum Vitae & Bibliography, as well as Index & Indexes of normative materials & of names. (shrink)

1. Law and morals as two systems of norms, and the inner morality of law 2. Law as a value bearer and as a mere external indicator 3. The inner and external moral credit of legislator 4. The inner morality of law. As to the last paragraph, the most striking feature of the inner morality of law is that it is such a possible characteristic, surplus quality which is not a sine qua non, which law is conceivable without. However, it (...) is a question whether law can long do without it? In principle, the legislator is free in deciding on what legal consequence he attaches to what course of conduct14 and it is also desirable that legal concepts be freed from moral overtones. Nevertheless, the legal complex cannot be torn out of its social context, nor can it steadily conflict with other complexes (religions, moral, or political values, norms and ideologies) law is to develop in living interrelationship with. Otherwise, it is subject to danger that (I) law-observance in average cases is weakened; (2) the reified functioning of and approach to law are strengthened and make law alienated; and (3) it blurs the social objectives the law intends to serve and, especially in hard cases, makes its application rootless and floating. A pathological situation only becomes more pathological, if the pathology of contents is accompanied by the pathology of means. Or, it brings the promise of real solution closer, if the adequateness of means also provides, by the strength of publicity, for the direct mobilization of society. That explains why it is a topical question what I have proposed to term the inner morality of law. [For the text, see my L&Ph, 77–89] . (shrink)