Society has historically not taken a benign view of genetic disease. The laws permitting sterilization of the mentally re tarded~ and those proscribing consanguineous marriages are but two examples. Indeed as far back as the 5th-10th centuries, B.C.E., consanguineous unions were outlawed (Leviticus XVIII, 6). Case law has traditionally tended toward the conservative. It is reactive rather than directive, exerting its influence only after an individual or group has sustained injury and brought suit. In contrast, state legislatures have not been (...) inhibited in enacting statutes. Many of their products can be characterized as hasty, unnecessary, ill-conceived, and based on the heart rather than the head. Moreover the lack of expert consultation sought has also been remarkable. One state legislature, for example, has advocated immunization for sickle cell anemia! Many others have enacted laws for the screening of inborn errors of metabolism, e.g., phenylketon uria, but have poorly defined the lines of responsibility to secure compliance. A spate of specific disease-related bills has emerged in the u.S. Congress, each seeking recognition and appropriations. Sickle cell anemia, hemophilia, Cooley's anemia and Tay-Sachs disease have been among the front-runners for support. Finally, in 1975, Congress has begun to examine an omnibus bill concerning all forms of genetic disease. The bill, termed the National Genetic Diseases Act is, however, still far from being enacted. (shrink)

This paper deals with the connection between law and morality. Such a connection is relevant for political theory, since demonstrating that law necessarily implies a claim to justice would require fundamental rights to be considered the horizon of any legal system, instead of being considered as dependent on the axiological context of liberal democracies. The paper approaches the controversy starting from an overview of the work of the German philosopher Robert Alexy, in particular his attempt to establish an analytical (...) link between law and morality, and to this end considers law as a speech act with a claim to correctness. It then examines the critique put forward by Joseph Raz, that points out the lack of objectivity of this claim to correctness. In order to establish a moral foundation for law, the paper argues that it is necessary to take account of Karl-Otto Apel's attempt to establish the transcendental foundation of language, as well as of Habermas' critique of that attempt. In conclusion, it is argued that the debate about a possible link between law and morality sheds new light on contemporary debates on liberal justification in political theory. (shrink)

Pierwszorzędnym przedmiotem badań są przyjęte w Karcie, wprost lub domyślnie, rozstrzygnięcia typu aksjologicznego. Przez „aksjologiczne podstawy” rozumiane są rozstrzygnięcia dotyczące uznania takich, a nie innych, wartości czy dóbr za przedmiot ochrony; a ponieważ chodzi o „podstawy”, przedmiotem zainteresowania są rozstrzygnięcia fundamentalne w takim sensie, że stanowią one uzasadnienie dla bardziej szczegółowych rozstrzygnięć aksjologicznych i normatywnych. Pozwala to m.in. na formułowanie wniosków co do spójności rozstrzygnięć szczegółowych. Zagadnienie aksjologicznych podstaw obejmuje także problematykę relacji między wartościami a prawami podstawowymi oraz zagadnienie ontologicznego (...) statusu wartości i chronionych praw. Artykuł zawiera także wyniki badań nad wprowadzeniem do preambuły Karty w wersji niemieckojęzycznej zapisu o religijnym dziedzictwie, odbiegającego od brzmienia w innych językach mówiącego o dziedzictwie duchowym. (shrink)

An axiological analysis of the basis of the 1997 Constitution of the Republic of Poland, determined mainly in the Preamble, makes it possible to put forward a thesis that this axiology is not, at least in reference to the principle, eclectic. In respect of the meta-axiological settlements, this is a tradition of natural-law type, recognizing the objective grounding of values and law. The accepted solutions are also convergent with the axiology typical of the international protection of human rights. (...) -/- Résumé L’analyse des fondements axiologiques de la Constitution polonaise de 1997, inscrits avant tout dans le préambule, permet de formuler la thèse selon laquelle cette axiologie n’est pas, en principe, éclectique. La réflexion sur les valeurs s’inscrit dans la vision classique des fondements du droit, remontant à l’antiquité. Partant de là, se dégage une tradition juridique appuyée sur le droit naturel, reconnaissant la force objective des valeurs et du droit. Ces conclusions rejoignent l’axiologie classique de la protection internationale des droits de l’Homme. -/- Zusammenfassung Die Analyse der vor allem durch die Präambel definierten axiologischen Grundlagen der Verfassung der Republik Polen von 1997 ermöglicht die Aufstellung der These, dass diese Axiologie nicht eklektisch ist, zumindest nicht prinzipiell. Hier enthüllt sich ein Denken von den Werten, das sich in die klassische, bis in die Antike zurückreichende Reflexion über die Grundlagen des Rechts einfügt. Wegen der metaaxiologischen Entscheidungen ist das eine Tradition naturrechtlichen Typs, die die objektive Begründung der Werte und des Rechts anerkennt. Die angenommenen Lösungen stimmen auch mit der für den internationalen Schutz der Menschenrechte typischen Axiologie überein. (shrink)

This paper focuses on the philosophical-ethical foundations of Constantine’s definition of philosophy, as well as its anthropological and axiological aspects. The focus is placed on the relationship between definitions of philosophy postulated by Constantine the Philosopher and John of Damascus, the latter of which traces the six classical definitions systematized by Platonic commentators. Byzantine thinkers proposed a method of unifying both the theoretical and practical aspects of ancient philosophy with a Christian way of life by interpreting the classical (...) definitions of philosophy and dividing it into theoretical and practical parts, the latter including ethics. Constantine understood philosophy in the sense of the second (knowledge of things Divine and human) and the fourth (becoming like God) meanings of earlier definitions, with the addition of the Christian sense of acting in accordance with the image of God. In addition to these gnosiological and anthropological aspects, the paper also observes the axiological aspect of Constantine’s definition of philosophy, which appears to be a foundation for exploring human behaviour as in compliance with Christian laws encouraging changes in ethical principles so as to follow a new code of ethics, through which new values were presented to the Slavs. (shrink)

Two competing models of metaaxiological justification of politics are analyzed. Politics is understood broadly, as actions which aim at organizing social life. I will be, first of all, interested in law making activities. When I talk about metaaxiological justification I think not so much about determinations of what is good, but about determinations refering to the way the good is founded, in short: determinations which answer the question why something is good. In the first model, which is described here as (...) objectivistic, it is assumed that determining that which is good is a matter of cognition; in the second model, which could be described here as voluntaristic or excedingly liberal, it is assumed that determining good is not a matter of cognition but of will – something is good because it is wanted. In the latter model, the cognoscibility of good is rejected and therefore the objective criteria for evaluation of which ‘will’ is better and which is worse are rejected. As a consequence, negative freedom becomes the fundamental value of social order and the basic requirement is that of maximizing the sphere of individual’s free actions, the sphere which is free from interference of other individuals or institutions. I am going to argue that none of these models is acceptable as a basis of oragnizing social life, and at least because of one reason. Each of them leads to a certain version of totalitarianism. In the conclusion I am going to present a mixed model, which, in my opinion, reflexes well the practice of democratic states. Analysis of these three models allows, first of all, to identify more clearly some of the problems appearing in making law, including procedural questions. By pointing at the interdependence of the foundations of good and law making procedures it is argued that the choice of the concept of good (a metaaxiological choice) is primary to the choice of law making procedures. (shrink)

The author poses a question: which of the two fundamental, constitutional values – common good or human dignity – can be considered to be the cornerstone, the unifying value in the Constitution of the Republic of Poland from 1997. The paper shows the crucial reasons for accepting each of these values as primary and also presents the underlying relationships between these values . The prominence of a given value for defining the aim of the constitution and the legal order based (...) on it was accepted as the most important aspect for determining the order of primacy. In respect of the direct aims of activities of public authorities and more broadly – of the aims of subjects whose activities are defined by the constitution – the primary value should be common good understood as certain social conditions of life which support human development. It defines the space in which other constitutional values, also human dignity, are integrated. Human dignity, however, the primary value defining human being, gives the reason why human development is a first and autonomous aim of the constitutional order. In this respect dignity has priority before common good. -/- Autor stawia pytanie o to, którą z fundamentalnych wartości konstytucyjnych – dobro wspólne czy godność człowieka – można uznać za wartość pierwszą i stanowiącą podstawę spójności aksjologicznej Konstytucji RP z 2 kwietnia 1997 roku. Wskazane są zasadnicze racje przemawiające za uznaniem każdej z tych wartości za wartość pierwszą i identyfikowane są zasadnicze relacje zachodzące między tymi wartościami. Za aspekt najistotniejszy dla ustalenia pierwszeństwa którejś z tych wartości uznana jest doniosłość danej wartości dla określenia celu konstytucji i opartego na niej porządku prawnego. Z punktu widzenia bezpośredniego celu działań władzy publicznej i szerzej – podmiotów, których działanie wyznaczone jest porządkiem konstytucyjnym, wartością tą jest dobro wspólne wyznaczające przestrzeń, w której integrowane są inne wartości konstytucyjne, z godnością włącznie. Dobro wspólne jest celem porządku konstytucyjnego ze względu na godność człowieka, która czyni jego rozwój pierwszym i szczególnym – autotelicznym dobrem. W tej perspektywie godność ma pierwszeństwo przed dobrem wspólnym. (shrink)

The formal logical characteristics of the categories of "tolerance" and "intolerance" are emphasized, as well as empirical-pragmatic advantages of a declaration and realization of tolerant positions in modern international life. It is mentioned that the limits of intolerant actions are set either by external resistance, or by intolerant subjects' potential for exhaustion. The historical and ideological prerequisites for political tolerance, as well as the principle of "resistance to evil by force" advocated by Russian philosopher Ivan lliyn, are reviewed. The basis (...) of socio-ontological tolerance in the modern life of the world community, its reinforcement by tendencies in scientific and technical development and in international law, and the role of comprehensive objective interpretations of the function of international tolerance by mass media systems are analyzed. The meaning of an axiological foundation for tolerance in international policy and the objective difficulty of consolidating it in the social life of the early decades of the 21st century are revealed. (shrink)

This authoritative and wide-ranging book, first published in 2003, examines the history of western linguistics over a 2000-year timespan, from its origins in ancient Greece up to the crucial moment of change in the Renaissance that laid the foundations of modern linguistics. Some of today's burning questions about language date back a long way: in 1400 BC Plato was asking how words relate to reality. Other questions go back just a few generations, such as our interest in the mechanisms (...) of language change, or in the social factors that shape the way we speak. Vivien Law explores how ideas about language over the centuries have changed to reflect changing modes of thinking. A survey chapter brings the coverage of the book up to the present day. Classified bibliographies and chapters on research resources and the qualities the historian of linguistics needs to develop, provide the reader with the tools to go further. (shrink)

Traditional moral theories appear to be unable to give a credible account of the relationship between deontic and axiological concepts, i.e. duty and value. Of the two traditional solutions to this problem, one emphasises the independence of the two realms, whereas Mill argues that duty is definable in terms of goodness. In this paper I present Meinong's Law of Omission which offers, in my opinion, a promising alternative to these two traditional views.

Traditional moral theories appear to be unable to give a credible account of the relationship between deontic and axiological concepts, i.e. duty and value. Of the two traditional solutions to this problem, one emphasises the independence of the two realms, whereas Mill argues that duty is definable in terms of goodness. In this paper I present Meinong's Law of Omission which offers, in my opinion, a promising alternative to these two traditional views.

The concept of autonomy plays atleast two roles in moral theory. First, itprovides a source of constraints upon action:because I am autonomous you may not interferewith me, even for my own good. Second, itprovides a foundation for moral theory: humanautonomy has been thought by some to producemoral principles of a more general kind.This paper seeks to understand what autonomyis, and whether the autonomy of which we arecapable is able to serve these roles. We wouldnaturally hope for a concept of autonomy (...) thatis value-neutral rather than value-laden. Thatis to say, we would want the judgement that Iam autonomous to depend wholly on, say,structural features of my psychology, and in noway to require us to make ethical judgements, orother value judgements. Being value-neutral isperhaps desirable in a concept of autonomyserving the first role, and plausiblyindispensible in one playing the second. Ishall argue, however, that value-neutral conceptionsof autonomy are impoverished and out of linewith our intuitions; set out and defendan explicitly value-laden conception ofautonomy; and explore the implications of such a view for theability of autonomy to play the rolesmentioned above. (shrink)

Bringing together the latest work from leading scholars in this emerging and vibrant subfield of law, this book examines the philosophical issues that inform the intersection between law and neuroscience.

This book serves as a compact introduction to the economic analysis of law and organization. At the same time it covers a broad spectrum of issues. It is aimed at undergraduate economics students who are interested in law and organization, law students who want to know the economic basis for the law, and students in business and public policy schools who want to understand the economic approach to law and organization. The book covers such diverse topics as bankruptcy rules, corporate (...) law, sports rules, the organization of Congress, federalism, intellectual property, crime, accident law, and insurance. Unlike other texts on the economic analysis of law, this text is not organized by legal categories but by economic theory. The purpose of the book is to develop economic intuition and theory to a sufficient degree so that one can apply the ideas to a variety of areas in law and organization. (shrink)

The author starts with the assumption that present‐day Western society is complex, pluralistic and conflictual in nature. Because of these qualities of society, law appears as an ineluctable means for the regulation of societal relationships. Law does not express an amorphous common good, nor is it simply an instrument of power. Law turns the socio‐ethical and political conception that discursively prevails in the competition among the diverging conceptions of dynamic social groups into generally binding standards of conduct. In the socio‐ (...) class='Hi'>axiological concept of law presented here, law exhibits the conflicting character of the open, pluralistic society and brings about understanding for democracy and discursive‐deliberative politics. These are favourable presuppositions for the acceptability of law. (shrink)

The paper analyzes the sacred foundations of Western institutional order, moving from an epistemological, historical and legal–aesthetic perspective. Firstly, it identifies an epistemological theory of complexity which, pursuing Hayek’s theory of complexity, Robilant’s notion of informative–normative systems, Popper’s theory of the Worlds, and Dupuy’s theory of endogenous fixed point, will conclusively lead to presenting the hypothesis of World 0 as the World of the foundation of legal thinking, the home of the sacred and the aesthetic. Secondly, it identifies the (...) axiological character of the legal aesthetic as a discipline, a topic that will be taken up in relation to the work of the French historian of canonical law and psychoanalyst Legendre, starting from the analysis of a legal/historiographical context (Corpus Iuris Civilis, Corpus Iuris Canonici, Hobbesian Leviathan, Kelsenian Grundnorm). Thirdly, following Ellul’s thought on secularization, the idea that we now live in a secularized, lay society, lacking in the sacred is revealed as a sort of illusion, the creation of a myth of modernity, only apparently rational. Finally the paper proposes as the task of legal theory the identification of the system of “nomograms” in which the normative message is organized, according to a nonreductionistic approach that forces legal theory to recognize the plurality of the iconic forms of the normative message. The “nomograms” respond to the need of extending the field of legal science to phenomena that the positivist theory of law does not consider important, but which the process of evolution of contemporary society imposes. (shrink)

This article analyzes the main trends in the search for new philosophical foundations in Russian philosophy of law, the need for which arose due to the loss of Marxism’s former Soviet-era monopoly...

Abstract. The article discusses the importance of three extra-legal sources—divine inspiration, natural law, and morality—for a full understanding and effective application of law. Each source is seen as vital due to its ability to compensate for the shortcomings of the other two sources. No source, including belief, is seen as necessarily incompatible with the doctrinal pluralism characteristic of modern societies.

Recent years have witnessed major developments in philosophical inquiry concerning the nature of law and, with the growth of transnational legal institutions, in the phenomenon of law itself. This volume gathers leading writers in the field to take stock of current debates on the nature of law and the aims and methods of legal philosophy.

Legal epistemology has been an area of great philosophical growth since the turn of the century. But recently, a number of philosophers have argued the entire project is misguided, claiming that it relies on an illicit transposition of the norms of individual epistemology to the legal arena. This paper uses these objections as a foil to consider the foundations of legal epistemology, particularly as it applies to the criminal law. The aim is to clarify the fundamental commitments of legal (...) epistemology and suggest a way to vindicate it. (shrink)

Part I. Furthering debate between leading theories of Law -- The Explantory Role of the Weak Natural Law Thesis -- In Defense of Hart -- Law's Authority is not a Claim to Preemption -- The Normative Fallacy Regarding Law's Authority -- The Problem about the Nature of Law vis-à-vis Legal Rationality Revisited : Towards an Integrative Jurisprudence -- Part II. The Power of Legal Systems -- Law as Power : Two Rule of Law Requirements -- A Comprehensive Hartian Theory of (...) Legal Obligation : Social Pressure, Coercive Enforcement, and the Legal Obligations of Citizens -- Law and the Entitlement to Coerce -- Part III. Conceptual Analysis -- Farewell to Conceptual Analysis (in Jurisprudence) -- What Do We Want Law to Be? Philosophical Analysis and the Concept of Law -- Part IV. New Directions -- Legal as a Thick Concept -- Making Old Questions New : Legality, Legal System, and State -- Legal Disagreements and the Dual Nature of Law -- Is There One Right Answer to the Question of the Nature of Law? (shrink)

25 leading contemporary theorists of criminal law tackle a range of foundational issues about the proper aims and structure of the criminal law in a liberal democracy. The challenges facing criminal law are many. There are crises of over-criminalization and over-imprisonment; penal policy has become so politicized that it is difficult to find any clear consensus on what aims the criminal law can properly serve; governments seeking to protect their citizens in the face of a range of perceived threats have (...) pushed the outer limits of criminal law and blurred its boundaries. To think clearly about the future of criminal law, and its role in a liberal society, foundational questions about its proper scope, structure, and operations must be re-examined. What kinds of conduct should be criminalized? What are the principles of criminal responsibility? How should offences and defences be defined? The criminal process and the criminal trial need to be studied closely, and the purposes and modes of punishment should be scrutinized. Such a re-examination must draw on the resources of various disciplines-notably law, political and moral philosophy, criminology and history; it must examine both the inner logic of criminal law and its place in a larger legal and political structure; it must attend to the growing field of international criminal law, it must consider how the criminal law can respond to the challenges of a changing world.Topics covered in this volume include the question of criminalization and the proper scope of the criminal law; the grounds of criminal responsibility; the ways in which offences and defences should be defined; the criminal process and its values; criminal punishment; the relationship between international criminal law and domestic criminal law. Together, the essays provide a picture of the exciting state of criminal law theory today, and the basis for further research and debate in the coming years. (shrink)

Constitutional law has been and remains an area of intense philosophical interest, and yet the debate has taken place in a variety of different fields with very little to connect them. In a collection of essays bringing together scholars from several constitutional systems and disciplines, Philosophical Foundations of Constitutional Law unites the debate in a study of the philosophical issues at the very foundations of the idea of a constitution: why one might be necessary; what problems it must (...) address; what problems constitutions usually address; and some of the issues raised by the administration of a constitutional regime. Although these issues of institutional design are of abiding importance, many of them have taken on new significance in the last few years as law-makers have been forced to return to first principles in order to justify novel practices and arrangements in their constitutional orders. Thus, questions of constitutional 'revolutions,' challenges to the demands of the rule of law, and the separation of powers have taken on new and pressing importance. The essays in this volume address these questions, filling the gap in the philosophical analysis of constitutional law. The volume will provoke specialists in philosophy, politics, and law to develop new philosophically grounded analyses of constitutional law, and will be a valuable resource for graduate students in law, politics and philosophy. (shrink)

The need for the axiological determinants of cognition of law to be theoretically justified as a constituent of legal progress that includes the humanization of law makes the problem under the study relevant. The purpose of this article is to distinguish the value determinants of cognition of law. The main methodological approaches used in the study are axiological and anthropological approaches, which allow us to consider law as a valuable constituent of human life, inextricably linked with the human (...) personality. The article reveals that the modern understanding of the term “law” is characterized by axiological and anthropological approaches to its cognition; founds out that the human legal value has an integral-synthesizing character to all other values and, as a result, is embodied in the absolute legal value and inherent worth; establishes that the human dimension of law has become the result and, at the same time, the source of value-legal human understanding, which indicates the value of law and its axiological characteristics. (shrink)

This book addresses the philosophical questions that arise when neuroscientific research and technology are applied in the legal system. The empirical, practical, ethical, and conceptual issues that Pardo and Patterson seek to redress will deeply influence how we negotiate and implement the fruits of neuroscience in law and policy in the future.

Exploring the philosophical foundations of discrimination law as it exists in several jurisdictions, this collection of all new essays bridges the gap between abstract philosophical work on justice and fairness and legal work on specific types of discrimination.

The first book to explore the philosophical foundations of labour law in detail, including topics such as the meaning of work, the relationship between employee and employer, and the demands of justice in the workplace.

This is the first book to systematically examine the underlying theory of evidence in Anglo-American legal systems. Stein develops a detailed and innovative theory which sets aside the traditional vision of evidence law as facilitating the discovery of the truth. Combining probability theory, epistemology, economic analysis, and moral philosophy, he argues instead that the fundamental purpose of evidence law is to apportion the risk of error in conditions of uncertainty.

Arthur Kaufmann is one of the most prominent figures among the contemporary philosophers of law in German speaking countries. For many years he was a director of the Institute of Philosophy of Law and Computer Sciences for Law at the University in Munich. Presently, he is a retired professor of this university. Rare in the contemporary legal thought, Arthur Kaufmann's philosophy of law is one with the highest ambitions — it aspires to pinpoint the ultimate foundations of law by (...) explicitly proposing an ontology, a general theory of knowledge and concept of a person. Kaufmann's work derives, first of all, from the thinking of Gustav Radburch, his teacher, and then from ideas of Karl Engish and Hans-Georg Gadamer. The philosophy undertakes to pursue the ultimate foundation of law, law which is understood by Kaufmann, first of all, as a "concrete judgement" that is, what is right in a concrete situation. Justice belongs to the essence of law and "unjust law" is contradictio in adiectio. Kaufmann opposes all those theories, which as the only foundation for establishing just law (Recht) adopt legal norms (Gesetz). In Kaufmann's opinion , such theories are powerless in the face of all types of distortions of law rendered by political forces. He suggests that the basic phenomenon which needs to be explained and which cannot be disregarded by a philosopher of law is so-called "legal lawlessness" ("Gestzliches Unrecht"). "Legal lawlessness" which forms a part of life experience for the people of twentieth century totalitarian states. It proved "with the accuracy of scientific experiment" that the reality of law consists of something more than bare conformity with legal norms. The existence of lex corrupta indicates that law contains something "non-dispositive" which requires acknowledgment of both law-maker and judge. Kaufmann, accepting the convergent concept of truth and cognition, assumes that "non-dispositive" content, emerging as the conformity of a number of cognitive acts of different subjects (inter-subjective communicativeness and verifiability), indicates the presence of being in this cognition. The questions "What is law?" and "What are the principles of a just solution?" lead straight to the ontology of law, to the question about the ontological foundations of law. Kaufmann discerns the ontological foundations of law in the specifically understood "nature of things" and, ultimately, in a "person". He proposes a procedural theory of justice, founded on a "person". In my work, I undertake to reconstruct the train of thought which led Kaufmann to the recognition of a "person" as the ontological foundation of law. In the first part, the conception of philosophy adopted by Kaufmann, initial characteristics of law — of reality which is the subject of analysis, as well as, the requirements for proper philosophical explanation of law posed by Kaufmann are introduced. In the second, Kaufmann's reconstruction of the process of the realisation of law is presented. Next, the conception of analogy which Kaufmann uses when explaining law is analyzed. In the fourth part, Kaufmann's conception of ontological foundations of law is discussed. A critical analysis is carried out in which I demonstrate that the theory of the ontological foundation of law proposed by Kaufmann and the concept of a person included in it do not allow a satisfac¬tory explanation of the phenomenon of "legal lawlessness" and lead to a number of difficulties in the philosophical explanation of law. Finally, the perspectives of a proper formulation of the issue of the ontological foundations of law are drafted in the context of the analyzed theory. My interest is centered on the conception of philosophy adopted by Kaufmann, according to which the existence of the reality is inferred on the basis of a certain configuration of the content of consciousness, whereas at the point of departure of philosophy of law, the data to be explained is a certain process, which is, basically, a process of cognition, while the reality appears only as a condition for the possibility of the occurrence of the process. I wish to argue that the difficulties which appear in the explanation of law are a consequence of the assumed fundamental philosophical solu¬tions, which seem to be characteristic, though usually not assumed explicitly, in philoso¬phy and theory of law dominant at present in continental Europe. Thereby, I wish to show the significance of ontological and epistemological solutions to the possibility of a proper formulation of the problems posed by philosophy and theory of law. Kaufmann proclaims himself in favour of a philosophy which poses questions about the ultimate foundations of understanding of the reality. In epistemology, he assumes that answers to the questions "What is reality like?" and ultimately "What is real?" are inferred on the basis of uniformity of a cognitive acts of different subjects. Cognition of the reality is accomplished exclusively through the content of conceptual material. The two fundamental questions posed by philosophy of law are "What is just law?" and "How is the just law enacted?" The latter is a question about the process of achieving a solution to a concrete case. Since, in Kaufmann's opinion, law does not exist apart from the process of its realisation, an answer to the question about the manner of realisation of law is of fundamental significance to answering the question: "What is law?" and to the explanation of the question about the ontological grounding of law, which is, as well, the foundation of justice. The proper solution has to take into account the moment of "non-dispositive" content of law; its positiveness understood as the reality and, at the same time, it has to point to the principles of the historical transformation of the content. Law, in the primary meaning of the word, always pertains, in Kaufmann's opinion, to a concrete case. A legal norm is solely the "possibility" of law and the entirely real law is ipsa res iusta, that which is just in a given situation. Determination of what is just takes place in a certain type of process performed by a judge (or by man confronted with a choice). Kaufmann aims to reconstruct this process. A question about the ontological foundation of law is a question about the ontological foundations of this process. In the analyzed theory it is formulated as a question about the transcendental conditions, necessary for the possibility of the occurrence of the process: how the reality should be thought to make possible the reconstructed process of the realisation of law. Kaufmann rejects the model for finding a concrete solution based on simple subsump¬tion and proposes a model in which concrete law ensues, based on inference by analogy, through the process of "bringing to conformity" that which is normative with that which is factual. Kaufmann distinguishes three levels in the process of the realisation of law. On the highest level, there are the fundamental legal principles, on the second legal norms, on the third — concrete solutions. The fundamental principles of law are general inasmuch as they cannot be "applied" directly to concrete conditions of life, however, they play an important part in establishing norms. A judge encounters a concrete situation and a system of legal norms. A life situation and norms are situated on inherently different levels of factuality and normativeness. In order to acquire a definite law both a norm (system of norms) and a life situation (Lebenssachverhalt) should undergo a kind of "treatment" which would allow a mutual conformity to be brought to them. Legal norms and definite conditions of life come together in the process of analogical inference in which the "factual state" ("Tatbestand") — which represents a norm, and in the "state of things" ("Sachverhalt") — which represents a specific situation are constructed. A "factual state" is a sense interpreted from a norm with respect to specific conditions of life. The "state of things" is a sense constructed on the basis of concrete conditions of life with respect to norms (system of norms). Legal norms and concrete conditions of life meet in one common sense established during the process of realisation of law. Mutatis mutandis the same refers to the process of composition of legal norms: as the acquisition of concrete law consists in a mutual "synchronization" of norms and concrete conditions of life, so acquisition of legal norms consists of bringing to conformity fundamental principles and possible conditions of life. According to Kaufmann, both of these processes are based on inference through analogy. As this inference is the heart of these processes it is simultaneously a foundation finding just law and justice. How does Kaufmann understand such an inference? As the basis for all justice he assumes a specifically interpreted distributive justice grounded on proportionality. Equality of relations is required between life conditions and their normative qualification. Concrete conditions of life are ascribed normative qualification not through simple application of a general norm. More likely, when we look for a solution we go from one concrete normative qualified case to another, through already known "applications" of norms to a new "application". The relation between life conditions and their normative qualifica¬tion has to be proportional to other, earlier or possible (thought of) assignments of that which is factual to that which is normative. Law as a whole does not consist of a set of norms, but only of a unity of relations. Since law is a, based on proportion, relative unity of a norm and conditions of life, in order to explain law in philosophical manner, the question about ontological base of this unity has to be asked. What is it that makes the relation between a norm and conditions of life "non-dispositive"? What is the basis for such an interpretation of a norm and case which makes it possible to bring a norm and conditions of life into mutual "conformity"? This is a question about a third thing (next to norms and conditions of life), with respect to which the relative identity between a norm and conditions of life occurs, about the intermediary between that which is normative and that which is factual and which provides for the process of establishing of norms, as well as, finding solutions. It is the "sense" in which the idea of law or legal norm and conditions of life have to be identical to be brought to mutual "conformity". In Kaufmann's opinion such a sense is nothing else but the "nature of things" which determines the normative qualification of the reality. Since establishment of this "sense" appears to be "non-dispositive" and controlled inter-subjectively (namely, other subjects will reach a similar result) so, in conformity with the convergent concept of truth, the "nature of things" must be assigned a certain ontological status. According to Kaufmann this is a real relation which occurs between being and obligation, between the conditions of life and normative quality. However, it should be underlined that from the point of view of the analyzed system the "nature of things" is a correlate of constructed sense, a result of a construction which is based on the principle of consistent understanding of senses ("non-normative" and "normative") and is not a reality which is transcendent against the arrangement of senses. In Kaufmann's theory, inference from analogy appears to be a process of reshaping the concepts (senses) governed by tendency to understand the contents appearing in relations between that which is factual and that which is normative in a consistent way. The analogical structure of language (concepts) and recognition of being as composed of an essence and existence is an indispensable requirement for the possibility of the realisation of law, based on specifically understood inference from analogy. It is necessary to assume a moment of existence without content which ensures unity of cognition. Existence emerges thus as a condition of the possibility of cognition. According to Kaufmann, the "nature of things" is the heart of inference through analogy and the basis for establishment of finding of law. Inference from the "state of things" to a norm or from a norm to the "state of things" always means inference through the "nature of things". The "nature of things" is the proper medium of objective legal sense sought in every cognition of law. In Kaufmann's view, the question whether the "nature of things" is ultima ratio of interpretation of law or is only a means of supplement gaps in law or whether it is one of the sources of law, is posed wrongly. The "nature of things" serves neither to supplement the gaps nor is it a source of law as, for example, a legal norm may be. It is a certain kind of "catalyst" necessary in every act of making law and solving a concrete case. Owing to "nature of things" it is possible to bring to a mutual conformity the idea of law and possible conditions of life or legal norms and concrete conditions of life. In Kaufmann's conception the "nature of things" is not yet the ultimate basis for understanding the "non-dispositiveness" of law. The relation between obligation and being is determined in the process of the realisation of law. Both the process itself and that which is transformed in this process are given. A question about the ontological bases of "material" contents undergoing "treatment" in the process of the realisation of law and about being which is the basis of regularity of the occurrence of the process arises. Only this will allow an explanation that the result of the process is not optional. Thus, a question about reality to which law refers and about the subject realising the law has to be formed. To this, Kaufmann gives the following answer: that which is missing is man but not "empirical man" but man as a "person". A "person" understood as a set of relations between man and other people and things. A "person" is the intermediary between those things which are different — norm and case are brought to conformity. A "person" is that which is given and permanent in the process of the realisation of law. It determines the content of law, is "subject" of law; this aspect is described by Kaufmann as the "what" of the process of realisation of law. A "person" consists of precisely just these relations which undergo "treatment" in the process. On the other hand, a "person" is "a place" in which the processes of realisation of law occur, it is the "how" of normative discourse, a "person" is that which determines the procedure of the process, being "outside" of it. This aspect of a "person" is connected with the formal moment of law. A "person" being, at the same time, the "how" and the "what" of the process of the realisation of law, is also, to put it differently, a structural unity of relation and that which constitutes this relation (unity of relatio and relata). According to this approach a "person" is neither an object nor a subject. It exists only "in between". It is not substance. Law is the relation between being and obligation. That which is obligatory is connected with that which is general. That which is general does not exist on its own, it is not completely real. Accordingly, a "person" as such is also not real. It is relational, dynamic and historical. A "person" is not a state but an event. In Kaufmann's opinion, such a concept of a "person" helps to avoid the difficulties connected with the fungibility of law in classical legal positivism. A "person" is that which is given, which is not at free disposal and secures the moment of "non-dispositiveness" of law. Kaufmann concludes: "The idea (»nature«) of law is either the idea of a personal man or is nothing". Theory points at the structure of realising law and explains the process of adoption of general legal norms for a concrete situation. The analysis has shown however, that in this theory a satisfactory answer to the question about the ultimate foundations of law is not given. It seems that in the analyzed theory the understanding of human being takes place through understanding of law. What is good for man as a "person", what is just, what a "person" deserves may be determined only against the existing system of law. A "per¬son" adopted as a basis of law is the reality postulated in the analysis of the process of the realisation of law. It is a condition of possibility of this process ( explaining, on one hand, its unity and, on the other hand, the non-dispositive moments stated in this process). A "person" in the discussed theory is entirely defined by the structure of law, it can be nothing more than that which is given in law, what law refers to, what law is about. Being, which is a "person", is constituted by relations between people and objects, the relations which are based on fundamental links between norms and conditions of life established in a process of bringing them to conformity. It has to be assumed that man as a "person" is a subject of law only as far as realising law "treats" given senses according to their current configuration. The system of law is a starting point and it describes in content what man is as a "person". Moreover, being a "person" is the condition for entering legal relations. Consistently, Kaufmann writes that "empirical man" is not the subject of law, man is not "out of nature" a "person". People become "persons" due to the fact that they acknowledge each other as "persons" — acknowledging, at the same time, law. This acknowledgement is a con¬dition of existence, of the possibility of the occurrence of process of realisation of law and of constituting legal relations which ultimately constitute a "person". Kaufmann assumes, that law tends towards a moral aim: it may and must create an external freedom, without which the internal freedom to fulfil moral obligations cannot develop. However, this postulate is not based on the necessary structure of human being. From the point of view of his system, it is nothing more than only a condition for the possibility of the occurrence of the process of the realisation of law — lack of freedom would destroy the "how" of this process. Thus, the postulate to protect the freedom of personal acts has to be interpreted, in accordance with the analyzed theory, as a postulate, the fulfilment of which aims ultimately at the accomplishment of the very same process of realisation of law itself and not the realisation of a given man. Kaufmann considers a "person" to be an element which unites the system of law as a whole. Law is a structure of relations, which are interdependent and inter-contingent. Consequently, a "person" which is to form the ontological basis of law has to be entity consisting of all relations. Being also the "how" of the process of realisation of law, if a "person" is to warrant its unity, it has to be a common source for all procedures. Hence, a single "person" would constitute a subject of law. Man appears to be only a moment of a certain entirety, realisation of which should be an aim of his actions. Law, creating a "person" as an object and subject of law becomes a primary entity. In the analyzed theory, the basis for determination of aims which law sets to man is not the allocation of man-subject to something which improves him but rather, such relation is only just constituted by law. A question appears, why should aims set in law also be the aims of "empirical man"? Why is this "empirical man" to be punished in the name of a "person" understood in such a way? If, however, it is assumed that what is man is determined by a system which is superior to him, then man has to be understood only as a part of a whole and there are no grounds to prohibit istrumental treatment of man and so the road to all aspects of totalitarianism might be opened. A problem of the application of created theory to the reality arises, the reality which the theory pretends to explain. Ultimately in his theory Kaufmann does not give any systemic grounds for a radical questioning of the validity of any legal norms. Every new norm becomes an equal part of system of norms. It is only its interpretation and application to given conditions of life that may be disputable, however, this refers to all norms without exception. Cohesive inter-pretation of norms and applications is necessary and sufficient for the acquisition of just law. New norms have to be interpreted in the light of others, correspondingly, the other norms require reinterpretation in the light of the new ones. Contradiction in interpretation of a norm does not form a basis for questioning norms but may serve only to question the manner of their interpretation (understanding). Therefore, no grounds exist to assume any legal norm as criminal or unjust, and in consequence, to question any consistently realised system based on formally, properly established norms, as "legal lawlessness". As law and a "person" do not exist without the process of realisation of law, the role of legal safety becomes crucial as the condition for the possibility of the occurrence of the process of realisation of law. Denying legal safety would be tantamount to negation of law in general (also of moral law) as negation of safety takes away, at the same time, the basis for occurrence of the process of realisation of law. Moreover, any lack of legal safety would also mean lack of a basis for the existence of man as a "person". Kaufmann's thesis, that civil disobedience is legalized only when it has a chance to lead to success, consistent with his concept of the foundations of law, seems to point directly to conclusions which deny the facts taken under consideration and doubtlessly Kaufmann's own intentions, since it would have to be assumed that accordingly there are no grounds to question a legal system in force based on violence which secures its operation. Force finally seems to determine which one of the mutually irreconcilable normative systems constitute law and which does not. A legitimate position is one which leads to success, it is the weaker system which is negated. If so, then basically violent imposition of law is not an act directed against the law in force but, to the contrary, realisation of law. In the context of the new system the former system of law may be talked about as unjust solely in the sense of being incapable of being consistently united with the new. However, at the base, ultimately, lies force which reaffirms differences and excludes from the process of realisation of law certain norms and their interpretations. Kaufmann was aiming at grounding of that which is "non-dispositive" in a certain given framework of interpretation. Nevertheless, he does not provide foundations for the understanding of phenomena, which he undertakes to explain at a point of departure. Instead of explaining them the theory negates the possibility of their existence. The reality postulated in regard to "non-dispositive" moments of the reconstructed process of acquiring law consist of a specifically understood "person", which appears in Kaufmann's conceptions as a condition of the possibility of the realisation of law. According to this approach understanding of a "person" may be only a function of law. To understand "legal lawlessness" and foundations of justice it is necessary to look for such theory of law in which understanding of man as a "person" and being is not a function of understanding of law (in which a "person" is not only a condition for possibility of reconstructed process of realisation of law; for possibility of cognition processes). It seems necessary to start from theory of being and a "person" based on broader experience than the one assumed by Kaufmann and reconstruct the ontological foundations of the process of realisation of law only in such perspective. Kaufmann points out that that to which law refers is ipsa res iusta a concrete relation of man to other people and things. This relation, in his theory, appears to be basically only just constituted by law (normative senses "applied" to conditions of life). Therefore, understanding the relation between a given man and other people and things which constitute the aim of his actions, that is understanding of good, is enacted against the background of constitution of senses; constitution which is a result of a process aiming towards consistent understanding of particular contents (of nor¬mative and non-normative senses). "Being" is secondary towards constructed senses it is only their correlate. The primary relation consists of relation of a man to law (system of norms), while the secondary relation is one of man to something which is the aim of his action (relation between man and good). Considering such approach it is difficult to envision a satisfying answer to the fundamental question: why does law put concrete man under any obligation to obey it? The source of this problem can be seen in reduction of the base for understanding good to content of obligation formulated in auto-reflection. Such reduction seems to be a consequence of Kaufmann's adoption of "convergent concept of truth" and in con¬sequence his recognition of indirect, essentialistic grasp of reality formulated in concepts as the basic and only foundation of theory of being and of law. In view of such an approach, analogy of law, concepts and being is the condition for the possibility of the process of transformation of senses which aims at consistent interpretation of all law. Existence is postulated with respect to the possibility of unity of experience and cognition. However, also a different approach to understanding of the problem of being and good is possible. In spontaneous cognition being is affirmed, first of all, not as a certain, non-contradictory, determined content, but as something existing. Together with a cer¬tain content (passed indirectly through notions) existence of being is co-given. The basis for unity of being is not formed by the consistence of content, as it is in the case of the theories departing from the analysis of cognition processes, but by an act of existence realising content (essence). Such an approach makes it also possible to go beyond the convergent concept of truth. It is worth mentioning that allocation of an agent to good is realised not only by the content of duty. A statement that something is good is primary with respect to determination of this good in content. The recognised good always bears some content, however, there are no reasons to base the concept of good exclusively on indirect, formulated in concepts cognition. As primary, can be adopted the relation of man to good and not of man to law. Determination in content appears to be only an articulation of aspectual cognition of being, as an object of action. In such a case the basis for relative unity of norm and conditions of life is not the "nature of things" understood as correlate of sense but it is relation to good based on internal constitution of man as potential, not self-sufficient being. It does not mean, that the moments of the process of realisation of law singled out by Kaufmann are not important to determination of what is just. He, quite rightly, points to significant role played by norms in the evaluation of concrete situations, in man's search for closer specification in content of good innate to him. The structure of process of determining law for a concrete situation, to a great degree corresponds to the processes of determining law which take place not only in the legal sciences. Kaufmann's analyses of the process of realisation of law show the complexity of the structure of these processes and point towards important moments allowing a better understanding of law and man. Nevertheless, these analyses cannot be a basis for construction of philosophical theory of law, theory which hopes to point out the ultimate, ontological foundations for understanding law. Kaufmann's results may become fully valid only in a more general perspective including broader experience at the point of departure. (shrink)

Topics covered in this volume include the question of criminalization and the proper scope of the criminal law; the grounds of criminal responsibility; the ways ...