This paper aims at providing an account of juridical acts that forms a suitable starting point for the creation of computational systems that deal with juridical acts. The paper is divided into two parts. Because juridical acts will be analyzed as intentional changes in the world of law, the ‘furniture’ of this world, that consists broadly speaking of entities, facts and rules, plays a central role in the analysis. This first part of the paper deals with this furniture and its (...) philosophical underpinnings, and at the same time introduces most of the logical apparatus that will be used to deal with it. The focus in the first part is on static and dynamic legal rules and their interplay in constituting the world of law. (shrink)

This paper contains an analysis of performatives with special attention to performatives in the law. It deals with the possibility to recognise performativity by means of a grammatical-syntactic criterion, the self-verifying and norm-promulgating character of legal performatives, an analysis of the effects of performatives by means of causal logic, the different forms of performativity and a theory of promise-performatives.

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)

A ‘Ulysses arrangement’ (UA) is an agreement where a patient may arrange for psychiatric treatment or non-treatment to occur at a later stage when she expects to change her mind. In this article, I focus on ‘competence-insensitive’ UAs, which raise the question of the permissibility of overriding the patient’s subsequent decisionally competent change of mind on the authority of the patient’s own prior agreement. In “The Ethical Justification for Ulysses Arrangements”, I consider sceptical and supportive arguments concerning competence-insensitive UAs, and (...) argue that there are compelling reasons to give such UAs serious consideration. In “Decisional Competence and Legal Capacity in UAs”, I examine the nature of decisional competence and legal capacity as they arise in UAs, an issue neglected by previous research. Using the distinctions which emerge, I then identify the legal structure of a competence-insensitive UA in terms of the types of legal capacity it embodies and go on to explain how types of legal capacity might be shared between the patient and a trusted other to offer support to the patient in the creation and implementation of a competence-insensitive UA. This is significant because it suggests possibilities for building patient support mechanisms into models of legal UAs, which has not addressed in the literature to date. Drawing on this, in “Using Insights from the Competence/Capacity Distinction to Enhance Patient Support in UAs”, I offer two possible models to operationalize competence-insensitive UAs in law that allow for varying degrees of patient support through the involvement of a trusted other. Finally, I outline some potential obstacles implementing these models would face and highlight areas for further research. (shrink)

This paper aims at providing an account of juridical acts that forms a suitable starting point for the creation of computational systems that deal with juridical acts. The paper is divided into two parts. This second part of the paper deals in some detail with the operation of juridical acts. Topics dealt with include: power and competence, capacity, form requirements, partial validity, avoidance and representation.

According to the received opinion there is a theoretical incompatibility between Herbert Hart's The Concept of Law and Alf Ross's On Law and Justice, and, according to the received opinion, it stems above all from Hart's emphasis on the internal point of view. The present paper argues that this reading is mistaken. The Concept of Law does not go beyond On Law and Justice in so far as both present arguments to the effect that law is based on a shared (...) understanding between participants in a project perceived by every participant to be a project in common. The paper demonstrates that there are substantive parallels between Hart's combination of “acceptance” or “acknowledgement” and a “critical reflective attitude” and Ross's combination of “motivation” or “feeling” and a “coherent whole of meaning and motivation.” The main conclusion is that the views of norms and normativity put forward in The Concept of Law and On Law and Justice are very close in essential respects, and, more specifically, that the two works are at root identical in their representation of the basis of normativity in reality. (shrink)

In this article, I distinguish between a moral and a strictly legal conception of legal normativity, and argue that legal positivists can account for law's normativity in the strictly legal but not in the moral sense, while pointing out that normativity in the former sense is of little interest, at least to lawyers. I add, however, that while the moral conception of law's normativity is to be preferred to the strictly legal conception from the rather narrow viewpoint of the study (...) of law's normativity, it is less attractive than the latter from the broader viewpoint of the study of the nature of law. I then distinguish between a moral and a strictly legal conception of the normative force of legal justification, and argue that legal positivists may without contradiction embrace the moral conception, and that therefore the analysis of the normative force of legal justification need not be a problem for legal positivists. I conclude that, on the whole, we have reason to prefer legal positivism to natural law theory. I begin by introducing the subject of jurisprudence . I then introduce the natural law/legal positivism debate, suggesting that we ought to understand it as a debate about the proper way to explicate the concept of law . I proceed to argue that legal decision‐making is a matter of applying legal norms to facts, and that syllogistic reasoning plays a prominent role in legal decision‐making thus conceived . Having done that, I discuss law's normativity , the normative force of legal justification , and the relation between the former and the latter . I conclude with a critical comment on Joseph Raz’ understanding of the question of law's normativity. (shrink)

In this article, I discuss Alf Ross's claim that the concept of a legal right is best understood as a technical tool of presentation, which ties together a disjunction of operative facts and a conjunction of legal consequences, and that rights statements render the content of a number of legal norms in a convenient manner. I argue that while Ross's analysis is appealing, it is problematic in at least three respects. I also argue, however, that despite these difficulties Ross's analysis (...) deserves our continued attention, because the fundamental idea—that the concept of a legal right must be understood functionally—is sound. (shrink)

After proposing an alternative definition of what “law” (jurisprudential concept) is, this article demonstrates the impossibility of identifying “the law” (what law-makers announce, relative to a particular jurisdiction) as something that is in a particular way. Rather, the law is a more or less abstract range of options. Drawing upon this conclusion, the article calls for a reassessment of how we view the role of law-makers. We need to remove the mystery that surrounds the law so as to provide for (...) greater transparency. This transparency can be gained by requiring law-makers to declare their inescapable biases where they influence their lawmaking. (shrink)

In his new book, The Force of Law, Frederick Schauer maintains that law has no necessary properties, and that therefore jurisprudents should not assume that an inquiry into the nature of law has to be a search for such properties. I argue, however, that Schauer's attempt to show that legal anti-essentialism is a defensible position fails, because his one main argument is either irrelevant or else incomplete, depending on how one understands it, and because the other main argument is false.

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)

I argue in this article (i) that Karl Olivecrona's legal philosophy, especially the critique of the view that law has binding force, the analysis of the concept and function of a legal rule, and the idea that law is a matter of organized force, is a significant contribution to twentieth century legal philosophy. I also argue (ii) that Olivecrona fails to substantiate some of his most important empirical claims, and (iii) that the distinction espoused by Olivecrona between the truth and (...) the correctness of legal statements is problematic but not needed in Olivecrona's legal philosophy. (shrink)