Lars Vinx
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199227952
- eISBN:
- 9780191711077
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199227952.001.0001
- Subject:
- Law, Philosophy of Law
Hans Kelsen is considered to be one of the founding fathers of modern legal philosophy. But despite Kelsen's prominence as a legal theorist, his political theory has been mostly overlooked. This book ...
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Hans Kelsen is considered to be one of the founding fathers of modern legal philosophy. But despite Kelsen's prominence as a legal theorist, his political theory has been mostly overlooked. This book argues that Kelsen's Pure Theory of Law needs to be read in the context of Kelsen's political theory. It offers the first comprehensive interpretation of the Pure Theory that makes systematic use of Kelsen's conception of the rule of law, his theory of democracy, his defense of constitutional review, and his views on international law. Once it is read in the context of Kelsen's political works, Kelsen's conception of legality provides the basis for a notion of political legitimacy that is distinct from any comprehensive and contestable theory of justice. It shows how members of pluralist societies can reasonably acknowledge the binding nature of law, even where its content does not fully accord with their own substantive views of the requirements of justice, provided it is created in accordance with an ideal of fair arbitration amongst social groups. This result leads to a fundamental re-evaluation of the Pure Theory of Law. The theory is best understood as an attempt to find a middle ground between natural law and legal positivism. Later positivist legal theorists inspired by Kelsen's work failed to appreciate the political-theoretical context of the Pure Theory and turned to a narrow instrumentalism about the functions of law. The perspective on Kelsen offered in this book aims to reconnect positivist legal thought with normative political theory.Less
Hans Kelsen is considered to be one of the founding fathers of modern legal philosophy. But despite Kelsen's prominence as a legal theorist, his political theory has been mostly overlooked. This book argues that Kelsen's Pure Theory of Law needs to be read in the context of Kelsen's political theory. It offers the first comprehensive interpretation of the Pure Theory that makes systematic use of Kelsen's conception of the rule of law, his theory of democracy, his defense of constitutional review, and his views on international law. Once it is read in the context of Kelsen's political works, Kelsen's conception of legality provides the basis for a notion of political legitimacy that is distinct from any comprehensive and contestable theory of justice. It shows how members of pluralist societies can reasonably acknowledge the binding nature of law, even where its content does not fully accord with their own substantive views of the requirements of justice, provided it is created in accordance with an ideal of fair arbitration amongst social groups. This result leads to a fundamental re-evaluation of the Pure Theory of Law. The theory is best understood as an attempt to find a middle ground between natural law and legal positivism. Later positivist legal theorists inspired by Kelsen's work failed to appreciate the political-theoretical context of the Pure Theory and turned to a narrow instrumentalism about the functions of law. The perspective on Kelsen offered in this book aims to reconnect positivist legal thought with normative political theory.
Martin Shapiro
- Published in print:
- 2005
- Published Online:
- February 2006
- ISBN:
- 9780199283958
- eISBN:
- 9780191603297
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199283958.003.0016
- Subject:
- Political Science, European Union
The European Union structure of rights is now being built upon the preexisting rights practices of the member states, which in turn developed in part in the light of US experience. In Europe, like in ...
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The European Union structure of rights is now being built upon the preexisting rights practices of the member states, which in turn developed in part in the light of US experience. In Europe, like in the USA, constitutional judicial review has moved on to more and more rights announcing and protecting review by more and more courts over time. Still, European judicial action favoring rights developed by somewhat different routes and continues to exhibit certain features that reflect specifically European heritages and contrast with the US.Less
The European Union structure of rights is now being built upon the preexisting rights practices of the member states, which in turn developed in part in the light of US experience. In Europe, like in the USA, constitutional judicial review has moved on to more and more rights announcing and protecting review by more and more courts over time. Still, European judicial action favoring rights developed by somewhat different routes and continues to exhibit certain features that reflect specifically European heritages and contrast with the US.
KEITH CULVER and MICHAEL GIUDICE
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195370751
- eISBN:
- 9780199775903
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195370751.003.001
- Subject:
- Law, Philosophy of Law
This chapter analyzes the limits to Hart's account of an official-operated rule of recognition as an account of the existence and borders of legal systems. The argument is developed via assessment of ...
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This chapter analyzes the limits to Hart's account of an official-operated rule of recognition as an account of the existence and borders of legal systems. The argument is developed via assessment of the success of the account's solutions to problems of circularity and indeterminacy in the identification of a distinct class of legal officials whose practices constitute the rule of recognition. It is shown that while the problem of circularity may have been adequately addressed in explanation of state legal systems, its solutions leave intact the problem of indeterminacy and reveal a strong presumption of hierarchy which threatens to run past rather than solve issues at the borders of legality. This is true in explanation of state legal systems, but the difficulties are particularly troubling in explanation of international law, as analysis of Hart's view of international law makes plain.Less
This chapter analyzes the limits to Hart's account of an official-operated rule of recognition as an account of the existence and borders of legal systems. The argument is developed via assessment of the success of the account's solutions to problems of circularity and indeterminacy in the identification of a distinct class of legal officials whose practices constitute the rule of recognition. It is shown that while the problem of circularity may have been adequately addressed in explanation of state legal systems, its solutions leave intact the problem of indeterminacy and reveal a strong presumption of hierarchy which threatens to run past rather than solve issues at the borders of legality. This is true in explanation of state legal systems, but the difficulties are particularly troubling in explanation of international law, as analysis of Hart's view of international law makes plain.
H. L. A. Hart
- Published in print:
- 1983
- Published Online:
- March 2012
- ISBN:
- 9780198253884
- eISBN:
- 9780191681431
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198253884.001.0001
- Subject:
- Law, Philosophy of Law
The chapters in this book were written in the twenty-eight years following H. L. A. Hart's inaugural lecture in 1953 as Professor of Jurisprudence at Oxford. Originally published in England, the ...
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The chapters in this book were written in the twenty-eight years following H. L. A. Hart's inaugural lecture in 1953 as Professor of Jurisprudence at Oxford. Originally published in England, the United States, and elsewhere, in many different journals and books, these chapters cover a wide range of topics. They include Professor Hart's first attempt to demonstrate the relevance of linguistic philosophy to jurisprudence, and his first defence of the form of legal positivism later developed in his Concept of Law; his studies of the distinctive teaching of American and Scandinavian jurisprudence; a general survey of the problems of legal philosophy; and an examination of three different attempts to provide a foundation for basic human rights or liberties, and of the notion of ‘social solidarity’ as a justification for the enforcement of conventional morality. Five of the chapters are devoted to the work of Jhering, Kelsen, Holmes, and Lon Fuller. The final chapter brings a philosophical distinction to bear on the solution to a perplexity which has long plagued lawyers, concerning the notion of an attempt to commit a crime. The Introduction gives an account of the main influences on Professor Hart's work; considers the main criticisms of it; and identifies the points where he now considers he was mistaken.Less
The chapters in this book were written in the twenty-eight years following H. L. A. Hart's inaugural lecture in 1953 as Professor of Jurisprudence at Oxford. Originally published in England, the United States, and elsewhere, in many different journals and books, these chapters cover a wide range of topics. They include Professor Hart's first attempt to demonstrate the relevance of linguistic philosophy to jurisprudence, and his first defence of the form of legal positivism later developed in his Concept of Law; his studies of the distinctive teaching of American and Scandinavian jurisprudence; a general survey of the problems of legal philosophy; and an examination of three different attempts to provide a foundation for basic human rights or liberties, and of the notion of ‘social solidarity’ as a justification for the enforcement of conventional morality. Five of the chapters are devoted to the work of Jhering, Kelsen, Holmes, and Lon Fuller. The final chapter brings a philosophical distinction to bear on the solution to a perplexity which has long plagued lawyers, concerning the notion of an attempt to commit a crime. The Introduction gives an account of the main influences on Professor Hart's work; considers the main criticisms of it; and identifies the points where he now considers he was mistaken.
N. W. Barber
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199585014
- eISBN:
- 9780191595318
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199585014.003.0005
- Subject:
- Law, Philosophy of Law, Constitutional and Administrative Law
This chapter provides an outline of the types of rules which are found within state constitutions. It argues that state constitutions contain both legal and non-legal rules, and that constitutions ...
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This chapter provides an outline of the types of rules which are found within state constitutions. It argues that state constitutions contain both legal and non-legal rules, and that constitutions may include laws drawn from a number of different legal systems. The chapter begins by reflecting on Hans Kelsen's account of the constitution and, by derivation, state. It introduces Kelsen's legalistic account of the constitution not only because of its inherent interest, but also because it has proved attractive to many British writers on the constitution. This attraction is curious, as it is in conflict with an established feature of British constitutional scholarship: the recognition of the plurality of sources of the constitution. The chapter argues that an appreciation of the strengths of this approach requires the rejection of the Kelsenian model. Legalistic accounts of state constitutions provide a distorted picture of the state.Less
This chapter provides an outline of the types of rules which are found within state constitutions. It argues that state constitutions contain both legal and non-legal rules, and that constitutions may include laws drawn from a number of different legal systems. The chapter begins by reflecting on Hans Kelsen's account of the constitution and, by derivation, state. It introduces Kelsen's legalistic account of the constitution not only because of its inherent interest, but also because it has proved attractive to many British writers on the constitution. This attraction is curious, as it is in conflict with an established feature of British constitutional scholarship: the recognition of the plurality of sources of the constitution. The chapter argues that an appreciation of the strengths of this approach requires the rejection of the Kelsenian model. Legalistic accounts of state constitutions provide a distorted picture of the state.
Erich Vranes
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199562787
- eISBN:
- 9780191705366
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562787.003.0002
- Subject:
- Law, Public International Law, EU Law
This chapter argues that the narrow definition of conflict prevailing in international law is problematic in legal terms. It submits that an adequate definition of conflict of norms firstly has to be ...
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This chapter argues that the narrow definition of conflict prevailing in international law is problematic in legal terms. It submits that an adequate definition of conflict of norms firstly has to be a wide one that includes incompatibilities between permissions and obligations, permissions and prohibitions, and obligations and prohibitions; and secondly should to rely on a ‘test of violation’. Additionally, this chapter clarifies misunderstandings in panel practice and academic writings relating to WTO Appellate Body rulings which have not in fact addressed the issue of conflicting norms of conduct, but the problem of inconsistent norms granting competences. In conclusion, the definition of conflict of norms in legal theory, in any given legal fields and in international law should read: There is a conflict between norms, one of which may be permissive, if in obeying or applying one norm, the other norm is necessarily or potentially violated.Less
This chapter argues that the narrow definition of conflict prevailing in international law is problematic in legal terms. It submits that an adequate definition of conflict of norms firstly has to be a wide one that includes incompatibilities between permissions and obligations, permissions and prohibitions, and obligations and prohibitions; and secondly should to rely on a ‘test of violation’. Additionally, this chapter clarifies misunderstandings in panel practice and academic writings relating to WTO Appellate Body rulings which have not in fact addressed the issue of conflicting norms of conduct, but the problem of inconsistent norms granting competences. In conclusion, the definition of conflict of norms in legal theory, in any given legal fields and in international law should read: There is a conflict between norms, one of which may be permissive, if in obeying or applying one norm, the other norm is necessarily or potentially violated.
Carlo Invernizzi Accetti
- Published in print:
- 2015
- Published Online:
- May 2016
- ISBN:
- 9780231170789
- eISBN:
- 9780231540377
- Item type:
- chapter
- Publisher:
- Columbia University Press
- DOI:
- 10.7312/columbia/9780231170789.003.0005
- Subject:
- Philosophy, Political Philosophy
This chapter advances the thesis that far from constituting a problem for democracy, moral relativism is actually the most solid intellectual foundation for it in the first place, through an analysis ...
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This chapter advances the thesis that far from constituting a problem for democracy, moral relativism is actually the most solid intellectual foundation for it in the first place, through an analysis and discussion of the work of Hans Kelsen.Less
This chapter advances the thesis that far from constituting a problem for democracy, moral relativism is actually the most solid intellectual foundation for it in the first place, through an analysis and discussion of the work of Hans Kelsen.
Hans Lindahl
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199232468
- eISBN:
- 9780191716027
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199232468.003.0013
- Subject:
- Law, EU Law
This chapter views discretion not only as the scope of legal power, but also as power over the scope of the law. This sheds light on the process by which the EC and its Member States negotiate the ...
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This chapter views discretion not only as the scope of legal power, but also as power over the scope of the law. This sheds light on the process by which the EC and its Member States negotiate the unity and divergence of their respective legal orders in the context of the public policy exception. Section 2 considers the case law of the discretionary exercise of the public policy reserve to show that there is little hope of confirming the hypothesis of conceptual divergence. Drawing on Hans Kelsen's analysis of the indeterminacy of legal norms, Section 3 introduces the twofold sense of discretion. Section 4 situates discretion in a general theory of constituent and constituted power. Section 5 examines public policy in the light of this denser notion of discretion. Section 6 radicalizes the analysis of ‘playing for time’, suggesting that the negotiation of divergence does not merely take place in time but is also and perhaps primarily about the unity of time.Less
This chapter views discretion not only as the scope of legal power, but also as power over the scope of the law. This sheds light on the process by which the EC and its Member States negotiate the unity and divergence of their respective legal orders in the context of the public policy exception. Section 2 considers the case law of the discretionary exercise of the public policy reserve to show that there is little hope of confirming the hypothesis of conceptual divergence. Drawing on Hans Kelsen's analysis of the indeterminacy of legal norms, Section 3 introduces the twofold sense of discretion. Section 4 situates discretion in a general theory of constituent and constituted power. Section 5 examines public policy in the light of this denser notion of discretion. Section 6 radicalizes the analysis of ‘playing for time’, suggesting that the negotiation of divergence does not merely take place in time but is also and perhaps primarily about the unity of time.
Hans Lindahl
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199552207
- eISBN:
- 9780191709654
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199552207.003.0002
- Subject:
- Law, Philosophy of Law, Constitutional and Administrative Law
This chapter analyses the nature of collective identity implicit in the notion of a political community. Taking the debate between Hans Kelsen and Carl Schmitt on the competing claims to priority of ...
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This chapter analyses the nature of collective identity implicit in the notion of a political community. Taking the debate between Hans Kelsen and Carl Schmitt on the competing claims to priority of the legal-normative and the political as exemplary of influential and opposing positions in constitutional theory, it argues (against both) that collective identity is reflexive identity, that self-constitution is constitution both by (political) and of (legal-normative) a collective self, and that the paradoxical relation of constituent power and constitutional form — of democracy and legality — is in a certain sense specious. The chapter sets a frame for addressing the arguments of the papers that follow.Less
This chapter analyses the nature of collective identity implicit in the notion of a political community. Taking the debate between Hans Kelsen and Carl Schmitt on the competing claims to priority of the legal-normative and the political as exemplary of influential and opposing positions in constitutional theory, it argues (against both) that collective identity is reflexive identity, that self-constitution is constitution both by (political) and of (legal-normative) a collective self, and that the paradoxical relation of constituent power and constitutional form — of democracy and legality — is in a certain sense specious. The chapter sets a frame for addressing the arguments of the papers that follow.
John P. McCormick
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691135106
- eISBN:
- 9781400846788
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691135106.003.0004
- Subject:
- Philosophy, History of Philosophy
Public lawyers in the Weimar Republic conceptualized the law as a novel means of performing the following pressing tasks that confronted state and society in the twentieth century: the regulation of ...
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Public lawyers in the Weimar Republic conceptualized the law as a novel means of performing the following pressing tasks that confronted state and society in the twentieth century: the regulation of an industrial economy, the amelioration of economic inequality, and the negotiation of cultural disagreement. During the Kaiserreich, monarchically legitimated elites unilaterally executed comparable tasks. However, in the Weimar Republic, previously excluded social groups—for instance, those represented by the Catholic, Social Democratic, Communist and National Socialist parties—now vied with traditionally represented social forces in electoral and parliamentary fora to formulate and direct regulatory, redistributive, and socially integrative policy. This chapter focuses on the fraught but not necessarily hopeless relationship of law and the welfare state or Sozialstaat. It traces the way liberal and social democratic lawyers like Richard Thoma and Hermann Heller attempted to constitutionally legitimize novel efforts at political regulation, economic redistribution and social integration while avoiding the intellectual either/or's insisted upon by the dominant legal theorists of the epoch, Hans Kelsen and Carl Schmitt.Less
Public lawyers in the Weimar Republic conceptualized the law as a novel means of performing the following pressing tasks that confronted state and society in the twentieth century: the regulation of an industrial economy, the amelioration of economic inequality, and the negotiation of cultural disagreement. During the Kaiserreich, monarchically legitimated elites unilaterally executed comparable tasks. However, in the Weimar Republic, previously excluded social groups—for instance, those represented by the Catholic, Social Democratic, Communist and National Socialist parties—now vied with traditionally represented social forces in electoral and parliamentary fora to formulate and direct regulatory, redistributive, and socially integrative policy. This chapter focuses on the fraught but not necessarily hopeless relationship of law and the welfare state or Sozialstaat. It traces the way liberal and social democratic lawyers like Richard Thoma and Hermann Heller attempted to constitutionally legitimize novel efforts at political regulation, economic redistribution and social integration while avoiding the intellectual either/or's insisted upon by the dominant legal theorists of the epoch, Hans Kelsen and Carl Schmitt.
Christoph Kletzer
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199237159
- eISBN:
- 9780191705427
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199237159.003.0006
- Subject:
- Law, Philosophy of Law
Starting from the perception that jurisprudence still predominantly but mostly unconsciously operates under the paradigm of logical empiricism, this chapter presents the following arguments: (i) ...
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Starting from the perception that jurisprudence still predominantly but mostly unconsciously operates under the paradigm of logical empiricism, this chapter presents the following arguments: (i) logical empiricism is a doctrine that stands under fundamental tensions, namely between its logicistic and its empiristic tenets; (ii) Quine tried to solve this incompatibility by redefining the ambit of logicism and by saving empiricism in its redefined form of naturalism; (iii) Wilfrid Sellars, on the other hand, resolved the incoherence of logical empiricism by attacking its core thesis of empiricism as such; (iv) insight into Quine's arguments necessitate a move from legal positivism to legal naturalism; and (v) insight into Sellars' arguments necessitate a move from legal positivism to a non-empiricist theory of law of which so far we have only two (probably flawed) examples: Hegel's theory of Objective Spirit and Kelsen's Pure Theory of Law.Less
Starting from the perception that jurisprudence still predominantly but mostly unconsciously operates under the paradigm of logical empiricism, this chapter presents the following arguments: (i) logical empiricism is a doctrine that stands under fundamental tensions, namely between its logicistic and its empiristic tenets; (ii) Quine tried to solve this incompatibility by redefining the ambit of logicism and by saving empiricism in its redefined form of naturalism; (iii) Wilfrid Sellars, on the other hand, resolved the incoherence of logical empiricism by attacking its core thesis of empiricism as such; (iv) insight into Quine's arguments necessitate a move from legal positivism to legal naturalism; and (v) insight into Sellars' arguments necessitate a move from legal positivism to a non-empiricist theory of law of which so far we have only two (probably flawed) examples: Hegel's theory of Objective Spirit and Kelsen's Pure Theory of Law.
Andrei Marmor
- Published in print:
- 2011
- Published Online:
- October 2017
- ISBN:
- 9780691141671
- eISBN:
- 9781400838707
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691141671.003.0002
- Subject:
- Philosophy, General
This chapter discusses Hans Kelsen's influential attempt to present a “pure” theory of law, and the reasons for its failure. It tries to show that Kelsen's pure theory of law is the most striking—and ...
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This chapter discusses Hans Kelsen's influential attempt to present a “pure” theory of law, and the reasons for its failure. It tries to show that Kelsen's pure theory of law is the most striking—and in many ways, still the most interesting—defense of a complete detachment view, both in method and substance. It argues that the main reason for the failure of this project is that it identified the detachment view with antireductionism. Kelsen thought that a theory about the nature of law should avoid any reduction of legal facts to facts of any other type, either social or moral.Less
This chapter discusses Hans Kelsen's influential attempt to present a “pure” theory of law, and the reasons for its failure. It tries to show that Kelsen's pure theory of law is the most striking—and in many ways, still the most interesting—defense of a complete detachment view, both in method and substance. It argues that the main reason for the failure of this project is that it identified the detachment view with antireductionism. Kelsen thought that a theory about the nature of law should avoid any reduction of legal facts to facts of any other type, either social or moral.
Lars Vinx
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199227952
- eISBN:
- 9780191711077
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199227952.003.0001
- Subject:
- Law, Philosophy of Law
This introductory chapter situates Kelsen's Pure Theory in the context of contemporary legal positivism. The Pure Theory is typically considered to be a forerunner of purely descriptive legal ...
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This introductory chapter situates Kelsen's Pure Theory in the context of contemporary legal positivism. The Pure Theory is typically considered to be a forerunner of purely descriptive legal positivist approaches. But this classification does not sit well with Kelsenian doctrines and texts that are typically overlooked by legal theorists: the thesis of the identity of law and state, Kelsen's defence of democracy and constitutionalism, and his advocacy of international legality. These parts of Kelsen's oeuvre suggest that the Pure Theory is driven by the normative ambitions of offering a defence of the rule of law, of democracy, of constitutionalism, and of international legalization. These ambitions cohere in the political ideal of a utopia of legality that is to be spelled out in this book.Less
This introductory chapter situates Kelsen's Pure Theory in the context of contemporary legal positivism. The Pure Theory is typically considered to be a forerunner of purely descriptive legal positivist approaches. But this classification does not sit well with Kelsenian doctrines and texts that are typically overlooked by legal theorists: the thesis of the identity of law and state, Kelsen's defence of democracy and constitutionalism, and his advocacy of international legality. These parts of Kelsen's oeuvre suggest that the Pure Theory is driven by the normative ambitions of offering a defence of the rule of law, of democracy, of constitutionalism, and of international legalization. These ambitions cohere in the political ideal of a utopia of legality that is to be spelled out in this book.
Stanley L. Paulson (ed.)
- Published in print:
- 1999
- Published Online:
- March 2012
- ISBN:
- 9780198763154
- eISBN:
- 9780191695209
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198763154.001.0001
- Subject:
- Law, Philosophy of Law
Hans Kelsen's efforts in the areas of legal philosophy and legal theory are considered by many scholars of law to be the most influential thinking of recent years. This book makes available some of ...
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Hans Kelsen's efforts in the areas of legal philosophy and legal theory are considered by many scholars of law to be the most influential thinking of recent years. This book makes available some of the best work extant on Kelsen's theory, including chapters newly translated into English. The volume addresses in detail the topic where debate on Kelsen's work has been liveliest: ‘normativity’ as Kelsen's alternative to both traditional legal positivism and natural law theory. The book covers such topics as competing philosophical positions on the nature of law, legal validity, legal powers, and the unity of municipal and international law. It also throws much light on Kelsen's intellectual milieu — as well as his intellectual debts.Less
Hans Kelsen's efforts in the areas of legal philosophy and legal theory are considered by many scholars of law to be the most influential thinking of recent years. This book makes available some of the best work extant on Kelsen's theory, including chapters newly translated into English. The volume addresses in detail the topic where debate on Kelsen's work has been liveliest: ‘normativity’ as Kelsen's alternative to both traditional legal positivism and natural law theory. The book covers such topics as competing philosophical positions on the nature of law, legal validity, legal powers, and the unity of municipal and international law. It also throws much light on Kelsen's intellectual milieu — as well as his intellectual debts.
John J. Coughlin
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199756773
- eISBN:
- 9780199932177
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199756773.001.0001
- Subject:
- Law, Philosophy of Law
This book takes up the fundamental question “What is law?” through a comparative study of canon law and secular legal theory. Canon law is analogous to the concept of law described by secular ...
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This book takes up the fundamental question “What is law?” through a comparative study of canon law and secular legal theory. Canon law is analogous to the concept of law described by secular theorists such as Austin, Kelsen, Holmes, and H. L. A. Hart. Consistent with the secular concept, canon law aims to set a societal order that harmonizes the interests of individuals and communities, secures peace, guarantees freedom, and establishes justice. At the same time, canon law reflects a claim about the spiritual end of the human person and religious nature of community. The comparison of one of the world's ancient systems of religious law with contemporary conceptions of law rooted in secular theory raises questions about the law's power to bind individuals and communities. For example, to what extent, does each of the approaches to law reflect the theory of Austin which understands law as a command given by the sovereign and backed by the coercive power of the state? Or, as H. L. A. Hart suggested, does law require an additional internal meaning that carries the power to bind? If internal meaning is a necessary constituent to law, how might religious and secular conceptions of it differ? In addition to these questions, this book asks the fundamental question “What is law?” through a comparative study of canon law and secular legal theory. This book also includes comparative consideration of the failure of canon law to address the clergy sexual abuse crisis, the canon law of marriage, administrative law, the rule of law, and equity. The book employs comparative methodology in an attempt to reveal and contrast the concepts of the human person reflected in both canon law and secular legal theory.Less
This book takes up the fundamental question “What is law?” through a comparative study of canon law and secular legal theory. Canon law is analogous to the concept of law described by secular theorists such as Austin, Kelsen, Holmes, and H. L. A. Hart. Consistent with the secular concept, canon law aims to set a societal order that harmonizes the interests of individuals and communities, secures peace, guarantees freedom, and establishes justice. At the same time, canon law reflects a claim about the spiritual end of the human person and religious nature of community. The comparison of one of the world's ancient systems of religious law with contemporary conceptions of law rooted in secular theory raises questions about the law's power to bind individuals and communities. For example, to what extent, does each of the approaches to law reflect the theory of Austin which understands law as a command given by the sovereign and backed by the coercive power of the state? Or, as H. L. A. Hart suggested, does law require an additional internal meaning that carries the power to bind? If internal meaning is a necessary constituent to law, how might religious and secular conceptions of it differ? In addition to these questions, this book asks the fundamental question “What is law?” through a comparative study of canon law and secular legal theory. This book also includes comparative consideration of the failure of canon law to address the clergy sexual abuse crisis, the canon law of marriage, administrative law, the rule of law, and equity. The book employs comparative methodology in an attempt to reveal and contrast the concepts of the human person reflected in both canon law and secular legal theory.
TIMOTHY A. O. ENDICOTT
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198268406
- eISBN:
- 9780191714795
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198268406.003.0004
- Subject:
- Law, Law of Obligations, Philosophy of Law
This chapter addresses the implications of vagueness for understanding the nature of law, and the nature of adjudication, through an argument that ‘higher-order’ vagueness (the vagueness of phrases ...
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This chapter addresses the implications of vagueness for understanding the nature of law, and the nature of adjudication, through an argument that ‘higher-order’ vagueness (the vagueness of phrases like ‘clear case’ and ‘borderline case’) poses an overwhelming objection to various popular accounts of adjudication that take the standard view of adjudication (notably Ronald Dworkin's account). Those theories apply to law a version of the ‘principle of bivalence’ (the principle that every meaningful assertion is either true or false). This chapter rejects the application of bivalence as well as the contention that propositions of law are ‘neither true nor false’ in borderline cases. This chapter also discusses a characteristic feature of legal practice termed ‘juridical bivalence’ — the practice of treating people as if the application of the law to their situations were bivalent.Less
This chapter addresses the implications of vagueness for understanding the nature of law, and the nature of adjudication, through an argument that ‘higher-order’ vagueness (the vagueness of phrases like ‘clear case’ and ‘borderline case’) poses an overwhelming objection to various popular accounts of adjudication that take the standard view of adjudication (notably Ronald Dworkin's account). Those theories apply to law a version of the ‘principle of bivalence’ (the principle that every meaningful assertion is either true or false). This chapter rejects the application of bivalence as well as the contention that propositions of law are ‘neither true nor false’ in borderline cases. This chapter also discusses a characteristic feature of legal practice termed ‘juridical bivalence’ — the practice of treating people as if the application of the law to their situations were bivalent.
d'Aspremont Jean
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199696314
- eISBN:
- 9780191732201
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199696314.003.0003
- Subject:
- Law, Public International Law, Philosophy of Law
This chapter discusses the emergence of formal law-ascertainment as it growingly manifested itself in a model of ascertainment based on the pedigree of rules (the so-called source thesis) in general ...
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This chapter discusses the emergence of formal law-ascertainment as it growingly manifested itself in a model of ascertainment based on the pedigree of rules (the so-called source thesis) in general legal theory and in the theory of sources of international law. It starts with a sketch of the role played by formalism in the writings of Hobbes, Bentham and Austin — those who adhered to a restrictive source thesis — before turning to Kelsen and Hart who reinforced the source thesis by the so-called social thesis. Mention is also made of Hart’s followers, Raz, McCormick, Coleman as well as others who have been inspired by him like Bobbio Tamanaha and Twining. The chapter then turns to international law to examine how such a conception of formalism has been received and transposed in the mainstream theory of sources. In doing so, the chapter points to the anti-theoretical postures of most 20th and early 21st century international lawyers which, despite adhering to the source thesis in their great majority, barely explored the theoretical foundations of the mainstream theory of sources of international law. Particular attention is also paid to the place and role of formalism in the constitutionalist theories of international law.Less
This chapter discusses the emergence of formal law-ascertainment as it growingly manifested itself in a model of ascertainment based on the pedigree of rules (the so-called source thesis) in general legal theory and in the theory of sources of international law. It starts with a sketch of the role played by formalism in the writings of Hobbes, Bentham and Austin — those who adhered to a restrictive source thesis — before turning to Kelsen and Hart who reinforced the source thesis by the so-called social thesis. Mention is also made of Hart’s followers, Raz, McCormick, Coleman as well as others who have been inspired by him like Bobbio Tamanaha and Twining. The chapter then turns to international law to examine how such a conception of formalism has been received and transposed in the mainstream theory of sources. In doing so, the chapter points to the anti-theoretical postures of most 20th and early 21st century international lawyers which, despite adhering to the source thesis in their great majority, barely explored the theoretical foundations of the mainstream theory of sources of international law. Particular attention is also paid to the place and role of formalism in the constitutionalist theories of international law.
John Finnis
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199580064
- eISBN:
- 9780191729386
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580064.001.0001
- Subject:
- Law, Philosophy of Law
This volume contains nineteen published and unpublished chapters from 1987 to 2009. They are grouped into four parts. The chapters in the first part examine the ways in which being a person grounds ...
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This volume contains nineteen published and unpublished chapters from 1987 to 2009. They are grouped into four parts. The chapters in the first part examine the ways in which being a person grounds the equality of all human beings, acknowledged as law's point even in Roman law and, rather shakily, in modern legal theory (Kelsen, Hart, Dworkin); legal rules can be seen as relationships between persons; persons are primary bearers of meaning and objects of legal interpretation, various aspects of personal identity (both natural and acquired by self-determination) are depicted by Aquinas and Shakespeare (better than Locke); and the reality of human spirit and dignity was vindicated by Elizabeth Anscombe's account of even simple physical gestures. Part Two groups four chapters. The first two carefully analyse what is involved in any group's acting and, consequently, its existence as a group, taking off from Hart's and Dworkin's inconclusive discussions of corporate persons, Honoré's showing of the importance of links and interaction, Thomas Nagel's attempt to distinguish public from private morality, and Scruton's elaborate discussion of corporate persons. The second two seek to show the importance and conditions for nations and national identity, in the face of arguments for a cosmopolitan morality, and of Dworkin's and Raz's arguments about respect and insult. Part Three is the longest part and the seven chapters include close studies of the idea of intention (and of willing, more generally) in Aquinas (poorly understood by many modern theologians, but centre on equally close analysis of intention (including conditional intention) in recent English criminal law, in Anglo-American law of torts, in recent English anti-discrimination law, and more generally. Part Four is about individuality or identity in early human embryonic existence, and in the severely injured conditions often called ‘brain death’ (as discussed by Peter Singer) or, less severe, ‘permanent vegetative syndrome’ (as judicially discussed in Bland).Less
This volume contains nineteen published and unpublished chapters from 1987 to 2009. They are grouped into four parts. The chapters in the first part examine the ways in which being a person grounds the equality of all human beings, acknowledged as law's point even in Roman law and, rather shakily, in modern legal theory (Kelsen, Hart, Dworkin); legal rules can be seen as relationships between persons; persons are primary bearers of meaning and objects of legal interpretation, various aspects of personal identity (both natural and acquired by self-determination) are depicted by Aquinas and Shakespeare (better than Locke); and the reality of human spirit and dignity was vindicated by Elizabeth Anscombe's account of even simple physical gestures. Part Two groups four chapters. The first two carefully analyse what is involved in any group's acting and, consequently, its existence as a group, taking off from Hart's and Dworkin's inconclusive discussions of corporate persons, Honoré's showing of the importance of links and interaction, Thomas Nagel's attempt to distinguish public from private morality, and Scruton's elaborate discussion of corporate persons. The second two seek to show the importance and conditions for nations and national identity, in the face of arguments for a cosmopolitan morality, and of Dworkin's and Raz's arguments about respect and insult. Part Three is the longest part and the seven chapters include close studies of the idea of intention (and of willing, more generally) in Aquinas (poorly understood by many modern theologians, but centre on equally close analysis of intention (including conditional intention) in recent English criminal law, in Anglo-American law of torts, in recent English anti-discrimination law, and more generally. Part Four is about individuality or identity in early human embryonic existence, and in the severely injured conditions often called ‘brain death’ (as discussed by Peter Singer) or, less severe, ‘permanent vegetative syndrome’ (as judicially discussed in Bland).
PETER C. OLIVER
- Published in print:
- 2005
- Published Online:
- January 2010
- ISBN:
- 9780198268956
- eISBN:
- 9780191713200
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198268956.003.0012
- Subject:
- Law, Constitutional and Administrative Law
This chapter attempts an original explanation of the independence of legal systems. The assumption made here is that constitutional independence can be explained, first, by observing that questions ...
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This chapter attempts an original explanation of the independence of legal systems. The assumption made here is that constitutional independence can be explained, first, by observing that questions of sovereignty are closely related to issues which are central to the concept of a legal system; and secondly, by asserting the independence of local constitutional theory. A credible explanation for independence is set out in a series of propositions. The virtue of this explanation is that it provides an account of what lawyers, politicians and the public apparently assume: that Australia, Canada, and New Zealand are now independent and that that independence was achieved by legal means.Less
This chapter attempts an original explanation of the independence of legal systems. The assumption made here is that constitutional independence can be explained, first, by observing that questions of sovereignty are closely related to issues which are central to the concept of a legal system; and secondly, by asserting the independence of local constitutional theory. A credible explanation for independence is set out in a series of propositions. The virtue of this explanation is that it provides an account of what lawyers, politicians and the public apparently assume: that Australia, Canada, and New Zealand are now independent and that that independence was achieved by legal means.
Neil MacCormick
- Published in print:
- 1999
- Published Online:
- January 2010
- ISBN:
- 9780198268765
- eISBN:
- 9780191713118
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198268765.003.0003
- Subject:
- Law, EU Law
This chapter examines how far any particular state does live up to the rule of law, thereby achieving the character of a law-state. It focuses on a case in the United Kingdom (UK) involving the ...
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This chapter examines how far any particular state does live up to the rule of law, thereby achieving the character of a law-state. It focuses on a case in the United Kingdom (UK) involving the Official Secrets Act of 1911. A key section of that act makes it an offence if a person who possesses state secrets passes them on to anyone else, except if authorized to do so, or if under ‘a duty in the interests of the state’ to do so. The chapter discusses law as a legal concept, the case of R. v Ponting and the theories of ‘perverse verdict’ and ‘unsound interpretation’, the case for the Perverse Verdict Theory and Unsound Interpretation Theory, Hans Kelsen's legal theory arguing that the existence of a legal order is necessary but not sufficient to the existence of a state, and the UK as a Rechtsstaat or state under the rule of law.Less
This chapter examines how far any particular state does live up to the rule of law, thereby achieving the character of a law-state. It focuses on a case in the United Kingdom (UK) involving the Official Secrets Act of 1911. A key section of that act makes it an offence if a person who possesses state secrets passes them on to anyone else, except if authorized to do so, or if under ‘a duty in the interests of the state’ to do so. The chapter discusses law as a legal concept, the case of R. v Ponting and the theories of ‘perverse verdict’ and ‘unsound interpretation’, the case for the Perverse Verdict Theory and Unsound Interpretation Theory, Hans Kelsen's legal theory arguing that the existence of a legal order is necessary but not sufficient to the existence of a state, and the UK as a Rechtsstaat or state under the rule of law.
