At the bottom level of the hierarchical structure (Stufenbau) of the legal system, the transition from “ought” to “is” has not been given its due. I argue that an additional level, that of fully concretized norms, belongs in the hierarchy. This sheds light on precisely where and how the transition from “ought” to “is” takes place. Whereas the fully concretized norm marks the bottom level in the hierarchy of norms, the coercive act or sanction qua fact is not found in (...) the hierarchy, contrary to what Adolf Julius Merkl and Hans Kelsen would have us believe. (shrink)

In this article, I shall consider a method for conceptual analysis which has been called the Canberra Plan and which might perhaps be conceived as an alternative approach to conceptual analysis in the classical sense. The Canberra Plan is not, however, aimed primarily at the elucidation of the relevant concept, but at the metaphysical question of identifying the descriptive (or natural or physical) property that corresponds to the concept.[1] The idea of the Canberra Plan is, more specifically, (a) to clarify (...) the import of the concept by reference to the role the concept plays in a network of concepts, principles, and claims, and (b) to investigate and see what, if any, descriptive property corresponds to the concept thus analyzed. What I want to do in this article, then, is first to introduce the Canberra Plan and give some consideration to its advantages and disadvantages and, secondly, to apply it to the concept of law, in order not only to clarify the import of this concept, but also to find out what, if any, descriptive property corresponds to the concept. The question of what descriptive property, if any, corresponds to the concept of law should be of considerable interest to jurisprudents, not only because the meta-ethical question of whether legal properties are descriptive, or even natural or physical, is generally interesting, but also because the existence of such descriptive (or natural or physical) legal properties is precisely what is asserted by legal positivists through the so-called social thesis, which has it that we determine what the law is using factual criteria. That is to say, if the analyst succeeds in establishing that the property of being law is a descriptive property, he would seem to have offered at least some support for the social thesis of legal positivism and, therefore, for legal positivism. In order to investigate this interesting question, I shall carry out a Canberra-style analysis of the concept of law, and I shall argue, tentatively, (1) that X is law if, and only if, (i) X is a relation between (a) a system of norms all of which can be traced back to one of several recognized sources of law that can be handled on the basis of exclusively factual considerations, and (b) an organization that is constituted and regulated by the norms of the system and whose task it is to interpret and apply these norms, (ii) X aspires to regulate social life in general, (iii) X is non-optional, and (iv) X claims to trump competing normative systems. In addition, I shall argue, equally tentatively, (2a) that the property of being law is precisely the descriptive property that satisfies the conditions (i)-(iv), (2b) that this property is a role property, not a realizer property, and (2c) that there is very little to be said about the legal realizer property on a general level and that the legal realizer property differs in this regard from moral and mental realizer properties. I shall, however, also argue (3a) that the analyst who applies the Canberra Plan to the concept of law will almost certainly find it very difficult to come up with a collection of sufficiently rich analytic platitudes, especially what Frank Jackson calls input and output clauses, (3b) that he is not likely to get much help from the idea of mature legal thinking (introduced here as an analog to Jackson’s idea of mature folk morality), and (3c) that the so-called permutation problem, which is very problematic, will arise as a result of the above-mentioned lack of input and output clauses. And I shall therefore argue (4) that, as things stand, the Canberra Plan will not help us clarify the nature of law or lend support to the strong social thesis of legal positivism. (shrink)

The Toulmin model has been proved useful in law and argumentation theory. This model describes the basic process in justifying a claim, which comprises six elements, i.e., claim (C), data (D), warrant (W), backing (B), qualifier (Q), and rebuttal (R). Specifically, in justifying a claim, one must put forward ‘data’ and a ‘warrant’, whereas the latter is authorized by ‘backing’. The force of the ‘claim’ being justified is represented by the ‘qualifier’, and the condition under which the claim cannot be (...) justified is represented as the ‘rebuttal’. To further improve the model, (Goodnight, Informal Logic 15:41–52, 1993) points out that the selection of a backing needs justification, which he calls legitimation justification. However, how such justification is constituted has not yet been clarified. To identify legitimation justification, we separate it into two parts. One justifies a backing’s eligibility (legitimation justification 1 ; LJ 1 ); the other justifies its superiority over other eligible backings (legitimation justification 2 ; LJ 2 ). In this paper, we focus on LJ 1 and apply it to the legal justification (of judgements) in hard cases for illustration purposes. We submit that LJ 1 refers to the justification of the legal interpretation of a norm by its backing, which can be further separated into several orderable subjustifications. Taking the subjustification of a norm’s existence as an example, we show how it would be influenced by different positions in the philosophy of law. Taking the position of the theory of natural law, such subjustification is presented and evaluated. This paper aims not only to inform ongoing theoretical efforts to apply the Toulmin model in the legal field, but it also seeks to clarify the process in the justification of legal judgments in hard cases. It also offers background information for the possible construction of related AI systems. In our future work, LJ 2 and other subjustifications of LJ 1 will be discussed. (shrink)

This article provides a critical introduction to an issue fo Ratio Juris concerend with two contrasting schools of legal idealism: the so-called Sheffield School (Beyleveld, Brownsword and colleagues) and the “discourse ethics” school of Habermas and Alexy. The article focusses on four issues: (1) whether a "claim to correctness" is a necessary feature of law, (2) the connection between correctness and validity, (3) Alexy's argument for a "qualifying connection" between law and morality, and its counterpart in the Sheffield School's approach, (...) and (4) Alexy's case for the "Radbruch formula": that "extreme injustice is not law”. While rejecting both versions of the case for legal idealism, I argue that both schools offer vaulable, and broadly similar, insights into what makes a legal system morally legitimate. (shrink)

This paper takes the dichotomy between “exclusive” and “inclusive” positivism and applies it by analogy to natural-law theories. With John Finnis, and with Beyleved and Brownsword, we have examples of “exclusive natural-law theory,” on which approach the law is valid only if its content satisfies a normative monological moral theory. The discourse theories of Alexy and Habermas are seen instead as “inclusive natural-law theories,” in which the positive law is a constitutive moment in that it identifies moral rules and specifies (...) their meaning. The article argues that inclusive theories of natural law are better suited to expressing an authentic “republican” attitude.*In the seed of the city of the just, a malignant seed is hidden, in its turn: the certainty and pride of being in the right. (Calvino 1997, 162). (shrink)

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

Robert Alexy's claim that law of necessity has a dual nature raises many interesting philosophical questions. In this article, I consider some of these questions, such as what the meaning of the correctness thesis is, whether Alexy's discourse theory supports this thesis, and whether the thesis is defensible; whether Alexy's argument from anarchy and civil war supports the claim that law of necessity has a real dimension; and what the implications are of the use of moral arguments, such as the (...) argument from injustice, for the status of Alexy's inquiry. (shrink)

This paper is part of a broader argument that seeks to offer a justification for political authority. It aims to investigate the role of truth in political argument and to place the problem of reasonable disagreement. The argument focuses on the possibility of political deliberation, that figures as a stage of political decision-making. It has to do with a confrontation between incompatible substantive beliefs which, however, all seem to be reasonable. How can citizens holding incompatible beliefs engage in an enterprise (...) of justifying them to one another? That is the question. (shrink)

This paper offers a diachronic reconstruction of MacCormick's theory of law and legal argumentation: In particular, two related points will be highlighted in which the difference between the perspective upheld in Legal Reasoning and Legal Theory and the later writings is particularly marked. The first point concerns MacCormick's gradual break with legal positivism, and more specifically the thesis that the implicit pretension to justice of law proves legal positivism false in all its different versions. The second point concerns MacCormick's acceptance (...) of the one-right-answer thesis and the consequent thinning of the differences between MacCormick's theory of legal reasoning and that of Ronald Dworkin and of Robert Alexy. The intent, however, is not only to describe this change in MacCormick's thought, but also to attempt a defence of the original view that we find in Legal Reasoning and Legal Theory. (shrink)

In this paper we investigate the role of performative contradictions in legal discourse. First of all we identify the argumentative roles of performative contradictions and two possible interpretations of them. With this done, we show that one use of performative contradictions can be fruitfully applied in analysing normative speech acts implementing norm enactment, namely, those speech acts that are designed to produce new legal norms. We conclude the paper by showing that our analysis provides strong support for Robert Alexy's claim-to-correctness (...) thesis, according to which speech acts of the norm-enacting kind raise a claim to correctness. (shrink)

In this essay both the facts/values and facticity/normativity divides are considered from the perspective of global semiotics and with specific regard to the relationships between legal meaning and spatial scope of law’s experience. Through an examination of the inner and genetic projective significance of categorization, I will analyze the semantic dynamics of the descriptive parts comprising legal sentences in order to show the intermingling of factual and axiological/teleological categorizations in the unfolding of legal experience. Subsequently, I will emphasize the translational (...) and enactive cognitive disposition underlying the construction of the second premise of the so-called judiciary syllogism and thereby the untenability of the idea that ‘law makes its facts.’ Hence, I will try to bring to the fore the cultural pre-assumptions encapsulated in the positivistic and therefore also formalistic or analytical approaches to legal experience and the loss of their inner consistency when legal experience confronts the phases and major changes of global semiotics. Finally, I will strive to relativize the opposition between the positivist and non-positivistic theories of law in view of an understanding of legal experience focused not only, or at least not primarily, on what ‘law is’ but also on ‘how’ it unwinds through, and _in spite of_, environmental and semantic transformations. (shrink)

The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between “standard positivism” and “post‐Hartian positivism.” Then I will consider various kinds of relations between law and morality that are worthy of jurisprudential interest, and explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should (...) be taken into account, and what kind of such relations are indeed of no import at all. The upshot of this analysis consists in highlighting the distinction between two different dimensions of legal validity (formal validity and material validity respectively), and in pointing out that the positivist separability thesis can apply to formal validity only. On the other hand, when the ascertainment of material validity is at stake, some form of moral reasoning may well be involved (here and now, it is necessarily involved). The essay concludes with some brief remarks on the persisting importance of the positivist jurisprudential project. (shrink)

The paper looks at an impasse with respect to the role of rights as reasons for action which afflicts contemporary legal and political debates. Adopting a meta‐ethical approach, it moves on to argue that the impasse arises from a philosophical confusion surrounding the role of rights as normative reasons. In dispelling the confusion, an account of reasons is put forward that attempts to capture their normativity by relating them to a reflexive public practice. Two key outcomes are identified as a (...) result of this explication: first, that normative practices are instances of rule‐following; and second, that agents partaking of normative practices possess absolute value (i.e., acquire the status of persons). In light of this explication, rights acquire the status of the most general reasons that purport to guarantee the content of personhood by specifying and safeguarding conditions which enable agents to participate in public practices of universalisation. (shrink)

The argument from the claim to correctness has been put forward by Robert Alexy to defend the view that normative utterances admit of objective answers. My purpose in this paper is to preserve this initial aspiration even at the cost of diverting from some of the original ideas in support of the argument. I begin by spelling out a full-blooded version of normative cognitivism, against which I propose to reconstruct the argument from the claim to correctness. I argue that the (...) context of uttering normative propositions points to the possibility of normative cognition, but does not constitute it. What constitutes the possibility of cognition is, as of necessity, the propositional structure of norms. I conclude that the argument from the claim to correctness ought to safeguard a distinction between the context of uttering a normative sentence and the proposition that individuates the content of the utterance. (shrink)

A classic debate in the history of philosophy is that between rationalists and empiricists concerning the “true” source of human knowledge. In legal philosophy this debate has been reflected in the classic opposition between natural law and legal positivist perspectives. Even the currently predominant inclusivist perspectives on the nature of law, such as inclusive legal positivism and inclusive legal non-positivism, are not immune to such a dichotomy. In this paper I attempt to present an understanding of specific cognitive characteristics of (...) prevailing legal theories from the perspective of the theory of psychological types as developed by Carl G. Jung. (shrink)

Law contains many dualities, though most, if not all, of these dualities resolve into one complex puzzle: To what extent is law a matter of pure social facts, or moral value untethered to social facts? I argue that each concept of law reconciles this duality in a different way on the basis of certain beneficial consequences that might result. Instead of pitting concepts against one another universally, we should accept that the balance between law's social fact and moral value dimensions (...) is context-specific in relation to particular legal puzzles. This balance can be achieved only by considering both political theory and empirical data. (shrink)

. One of the most powerful accounts of the necessary connection between law and morality grounded on the openness of communication is provided by Robert Alexy, who builds a discourse theory of law on the basis of Habermas’ theory of general practical discourse. In this article I argue that the thesis based on the openness of legal discourse is problematic in that it does not provide a convincing account of the differentiation of legal discourse from other practical discourses. I offer (...) an understanding of the institutionalisation of legal discourse as the tacit commitment of the participants to their shared normative experience and in particular in: 1) the possibility of containing normative force in space, 2) the possibility of transforming word into deed, 3) the possibility of grasping and controlling time and 4) the possibility of transforming deed into word. That commitment of participants in legal discourse is revealed as a set of fundamental assumptions embedded in all legal utterances, which provide the necessary bedrock that makes communication possible. It also provides a basis for the institution of legal discourse, to the effect that their problematisation signifies a departure from the latter. (shrink)

Robert Alexy defines law as including a claim to moral correctness and demonstrating social efficacy. This paper argues that law's social efficacy is not merely an observable fact but is undergirded by moral commitments by rulers that it is possible for their subjects to follow the rules, that the rulers and others will also follow the rules, that subjects will be protected from violence if they act in accordance with the rules, and that subjects will be entitled to legal redress (...) if others act violently towards them otherwise than in accordance with the rules. Alexy is correct in his conclusion that a system of norms that is not by and large socially efficacious is not a valid legal system, but wrong insofar as he follows legal positivism in distinguishing this aspect of law's validity from law's claim to moral correctness. (shrink)

Do our present circumstances allow us to defend a specific connection (that specific connection) between «legal rules», «moral claims» and «democratic principles» which we may say is granted by an unproblematic presupposition of universality or by an «acultural» experience of modernity? In order to discuss this question, this paper invokes the challenge-visée of a plausible reinvention of Law’s autonomous project (a reinvention which may be capable of critically re-thinking and re-experiencing Law’s constitutive cultural-civilizational originarium in a «limit-situation» such as our (...) own). The discussion is developed by recognising that the claim to universality is not only incompatible with a substantive conception of juridicalness as validity but also sustained with difficulty by a procedural representation of discourse and rationality (a representation which, against its own conclusion-claims, could also be said to be culturally and civilizationally bounded). Not forgetting some specific features of contemporary juridical pluralism—namely that which emerges from the counterpoint between semiotic groups or interpretative communities (and their differently assumed claims of intersemioticity concerning the signifier law)—this train of reflection diagnoses briefly a sequence of complementary main difficulties (as «obstacles» to recognising Law’s demand as an unmistakable cultural project), namely those arising from the formalistic normativistic inheritance (confounding legal autonomy with isolationism), from the challenges and seductions of practical holism (justifying a continuum in which Law’s project loses its sense and autonomy), and also from the familiar debate between exclusive and inclusive versions of positivism and non-positivism (a debate which establishes-consecrates an equivocal counterpoint between Law and Morality). (shrink)

In this paper, I make an attempt to look for a thin and general concept of law that, as far as possible, should be neutral to the more substantial views of legal moralism and legal positivism, so that it is acceptable from both points of view. With this aim in view, I shall begin with a few remarks on concept formation and name a list of necessary requirements on an appropriate concept of law. On this basis, I intend to discuss (...) a number of contemporary legal theories in view to their respective interpretations of the concept of law. Finally, I want to propose a definition of law that not only satisfies the requirements of the concept of law, but is also general enough to be compatible with both camps of legal thinking. (shrink)

This paper deals with the question of how norms are to be conceived of in order to understand their role as guidelines for human action within various normative orders, particularly in the context of law on the one hand and conventional morality on the other. After some brief remarks on the history of the term “norm,” the author outlines the most significant general features of actually existing social norms, including legal and conventional norms, from which he arrives at two basic (...) requirements on an appropriate conception of such norms: the actuality and the normativity requirements. On this basis, he enters into a critical discussion of Kelsen's highly influential view of norms, arguing that this view is doomed to failure. In the last part of the paper, the author scrutinizes the more promising “practice theory of norms” by H.L.A. Hart, which, in his view, also suffers from some shortcomings, but may be modified in a way that leads to a conception of social norms providing us with a plausible explication of their actual existence and their normative force. (shrink)

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

. Can the label “law” apply to rules as amoral as the enactments of the Nazis? This question confronted the courts in Germany after 1945. In dealing with it, the judges had to take sides in the philosophical debate over the concept of law. In this context, the prominent voices of the legal philosophers Gustav Radbruch and Hans Kelsen could not go unheard. This paper draws on what could have been the “Radbruch‐Kelsen debate on Nazi Law.” In examining the debate, (...) it will argue for a substantive account of the morality of the law, as expressed in Radbruch's Formula. (shrink)

This article describes how the facts in social reality take an intermediate position between objective facts and purely subjective ‘facts’. In turn, these social facts can be subdivided into constructivist and non-constructivist facts. The defining difference is that non-constructivist facts are completely determined by an approximate consensus between the members of a social group, while constructivist facts are founded in such a consensus but can nevertheless be questioned. Ought fact are such constructivist facts. Because they are founded in social reality, (...) a naturalistic theory of ought facts is attractive. Because constructivist facts are always open to questioning, we can explain why the facts in social reality may found ought facts but are nevertheless not the final word about them. (shrink)

The debate concerning solidarity and justice among states has missed the key contribution made to international affairs by corrective justice. Unlike distributive justice, which applies within states, corrective justice applies among states. It applies in particular to cooperative arrangements creating interdependence among them. Corrective justice does not require fairness in outcomes. It requires redress in cases of loss caused by unfairness. An illustration of corrective justice among states is the Eurozone’s response to the financial crisis. The assistance offered to the (...) most burdened states was not as an attempt to arrive at fair shares but an attempt to remedy the losses unfairly caused by the mistakes made by the Eurozone as a whole, when designing its basic architecture. (shrink)

The hypothesis of this paper is that legal positivism depends on the non plausibility of strong moral cognitivism because of the non necessary connection thesis between law and morality that legal positivism is supposed to acknowledge. The paper concludes that only when based on strong moral cognitivism is it consistent to sustain the typical non-positivistic thesis of the necessary connection between law and morality. Habermas’s Philosophy of law is confronted with both positions.

In this essay, I will engage with the controversy that has sprung up between the proponents of the sharp separation thesis and those of the entanglement thesis. What I will be defending is a variant of the entanglement thesis. By drawing on contemporary action theory and on epistemic conceptualism, I will argue that, while objective facts and practical norms are indeed distinct categories of thought, that distinction does not amount to a conceptual gap—a dichotomy or unbridgeable divide. Their relation, in (...) other words, is not one of logical dualism but one of mere (analytical) distinction between interdependent categories of thinking. Hence the entanglement view on which distinction does not entail dichotomy. (shrink)

The paper reconstructs Luhmann’s conception of legal argumentation and justice especially focussing on the aspects of contingency and self-referring operative closure. The aim of his conception is to describe/explain in a disenchanted way—from an external, of “second order” point of view—the work on adjudication, which, rather idealistically, lawyers and judges present as being a matter of reason. As a consequence of some surface similarities with Derrida’s deconstructive philosophy of justice, Teubner proposes integrating the supposed reductive image of formal justice described (...) by Luhmann with the ideal conception of justice presented by Derrida. Here this kind of attempt is rejected as epistemologically wrong. In addition, Luhmann’s theory is argued to have other shortcomings, namely: the failure to understand the pragmatic function of principles, and the incapacity to describe the current legal questions linked with cultures and legal pluralism, which characterise our society. (shrink)

Philosophy is general and systematic reflection about what there is, what ought to be done or is good, and how knowledge about both is possible. Legal philosophy raises these questions with respect to the law. In so doing, legal philosophy is engaged in reasoning about the nature of law. The arguments addressed to the question of the nature of law revolve around three problems. The first problem addresses the question: In what kinds of entities does the law consist, and how (...) are these entities connected such that they form the overarching entity we call “law”? The answer is that law consists of norms as meaning contents which form a normative system. The second problem addresses the question of how norms as meaning contents are connected with the real world. This connection can be grasped by means of the concepts of authoritative issuance and social efficacy. The latter includes the concept of coercion or force. The third problem addresses the correctness or legitimacy of law, and, by this, the relationship between law and morality. To ask about the nature of law is to ask about necessary relations between the concepts of normative meaning, authoritative issuance as well as social efficacy, and correctness of content. (shrink)

The argument of this article is that the dual-nature thesis is not only capable of solving the problem of legal positivism, but also addresses all fundamental questions of law. Examples are the relation between deliberative democracy and democracy qua decision-making procedure along the lines of the majority principle, the connection between human rights as moral rights and constitutional rights as positive rights, the relation between constitutional review qua ideal representation of the people and parliamentary legislation, the commitment of legal argumentation (...) to both authoritative and non-authoritative reasons, and the distinction between rules as expressing a real “ought” and principles as expressing its ideal counterpart. All of this underscores the point that the dual nature of law is the single most essential feature of law. (shrink)

The central argument of this article turns on the dual‐nature thesis. This thesis sets out the claim that law necessarily comprises both a real or factual dimension and an ideal or critical dimension. The dual‐nature thesis is incompatible with both exclusive legal positivism and inclusive legal positivism. It is also incompatible with variants of non‐positivism according to which legal validity is lost in all cases of moral defect or demerit (exclusive legal non‐positivism) or, alternatively, is affected in no way at (...) all by moral defects or demerits (super‐inclusive legal non‐positivism). The dual nature of law is expressed, on the one hand, by the Radbruch formula, which says that extreme injustice is not law, and, on the other, by the correctness argument, which says that law's claim to correctness necessarily includes a claim to moral correctness. Thus, what the law is depends not only on social facts, but also on what the law ought to be. (shrink)

In the debate between positivism and non-positivism the argument from relativism plays a pivotal role. The argument from relativism, as put forward, for instance, by Hans Kelsen, says, first, that a necessary connection between law and morality presupposes the existence of absolute, objective, or necessary moral elements, and, second, that no such absolute, objective, or necessary moral elements exist. My reply to this is that absolute, objective, or necessary moral elements do exist, for human rights exist, and human rights exist (...) because they are justifiable. (shrink)

What is the relation between legal certainty and correctness? This question poses one of the perpetual problems of the theory and practice of law—and for this reason: The answer turns on the main question in legal philosophy, the question of the concept and the nature of law. Thus, in an initial step, I will briefly look at the concept and the nature of law. In a second step, I will attempt to explain what the concept and the nature of law, (...) thus understood, imply for the relation between legal certainty and correctness. Here three issues will be considered: first, the Radbruch formula as an answer to the problem of extreme injustice; second, the special case thesis, which claims that legal argumentation is a special case of general practical argumentation; and, third, the problem of the judicial development of the law. (shrink)

Two claims lay the foundation for Beyleveld and Brownsword’s legal theory. The first says that immoral laws cannot be law, the second that rights to freedom and welfare can be proven to be logically necessary given merely the phenomenon of agency. The author argues that both claims are too strong. The first is an overidealization of law, which fails to do justice to its double nature as a real as well as an ideal phenomenon. The second must fail, for a (...) moral “ought” cannot be deduced from a merely instrumental “ought.”. (shrink)

There are two fundamentally different conceptions of the nature of constitutional rights: a positivistic conception and a non-positivistic conception. According to both, constitutional rights are part of the positive law. The difference is that in the positivistic conception, constitutional rights are only or exclusively positive law, whereas in the non-positivistic conception positivity represents but one side of constitutional rights, that is to say, their real or factual side. Over and above this, constitutional rights, according to the non-positivistic conception, also have (...) an ideal or critical dimension. This is not without reason. For as with all law, constitutional rights necessarily raise, in connection with principles theory, a claim to correctness. This claim to correctness leads to a necessary connection between constitutional rights understood as positive rights and human rights understood as moral rights, and, with this, to the dual nature of constitutional rights. (shrink)

Speech and thought about what the law is commonly function in practical ways, to guide or assess behavior. These functions have often been seen as problematic for legal positivism in the tradition of H.L.A. Hart. One recent response is to advance an expressivist analysis of legal statements (Toh), which faces its own, familiar problems. This paper advances a rival, positivist-friendly account of legal statements which we call “quasi-expressivist”, explicitly modeled after Finlay’s metaethical theory of moral statements. This consists in a (...) descriptivist, “rule-relational” semantics combined with a pragmatic account of the expressive and practical functions of legal discourse. We argue that this approach is at least as well-equipped as expressivism to explain the motivational and prescriptive features of “internal” legal statements, as well as a fundamental kind of legal disagreement, while being better positioned to account for various “external” uses of the same language. We develop this theory in a Hartian framework, and in the final part of the paper argue (particularly against Toh’s expressivist interpretation) that Hart’s own views in The Concept of Law are best reconstructed along such quasi-expressivist lines. (shrink)

One main goal of argumentation theory is to evaluate arguments and to determine whether they should be accepted or rejected. When there is no clear answer, a third option, being undecided, has to be taken into account. Indecision is often not considered explicitly, but rather taken to be a collection of all unclear or troubling cases. However, current philosophy makes a strong point for taking indecision itself to be a proper object of consideration. This paper aims at revealing parallels between (...) the findings concerning indecision in philosophy and the treatment of indecision in argumentation theory. By investigating what philosophical forms and norms of indecision are involved in argumentation theory, we can improve our understanding of the different uncertain evidential situations in argumentation theory. (shrink)

It's natural to think that the principles expressed by the statements "Promises ought to be kept" and "We ought to help those in need" are defeasible. But how are we to make sense of this defeasibility? On one proposal, moral principles have hedges or built-in unless clauses specifying the conditions under which the principle doesn't apply. On another, such principles are contributory and, thus, do not specify which actions ought to be carried out, but only what counts in favor or (...) against them. Drawing on a defeasible logic framework, this paper sets up three models: one model for each proposal, as well as a third model capturing a mixed view on principles that combines them. It then explores the structural connections between the three models and establishes some equivalence results, suggesting that the seemingly different views captured by the models are closer than standardly thought. (shrink)

There is at least one immediate sense in which legal discourse is perspectival: it qualifies acts and facts in the world on the basis of rules. Legal concepts are for the most part constituted by rules, both in the sense that rules define these concepts’ semantic content and that, in order to engage with legal practice, we must act according to those rules, not necessarily complying with them but at least having them in mind. This is the distinctive perspective of (...) law: however, it would be misleading to think that this is the only perspective we can have in legal discourse. That of rule-constituted legal concepts is the fundamental perspective -- the inevitable presupposition of most legal assertions -- but other perspectives are possible on top of this fundamental background: perspectives on law, stemming from the basic perspective of law. -/- In this paper, I will try to argue that some different perspectives regarding law can be accounted for by analyzing different kinds of concepts that emerge in connection with legal institutions. My argument will consist of three steps as follows. First, I will explain how legal concepts are constituted by rules, referring in this regard to John Searle’s analysis of institutional concepts as it emerges in his Making the Social World, of 2010, and amending this analysis according to some criticisms that in 1986 Neil MacCormick had raised against Searle with specific reference to the legal domain. -/- Second, I will show that there are some kinds of concepts relevant for an institution which are not captured by Searle’s analysis in terms of constitutive rules, even if this is amended according to MacCormick’s criticisms. This I will do by considering the game of chess as a simple system of rule-constituted concepts (concepts such as 'checkmate,' 'bishop,' 'king'). I will consider four examples of perfectly legitimate assertions regarding a match of chess -- these being (1) ‘I won’; (2) 'you made a good attack'; (3) 'you are cheating'; (4) 'you made good use of the first-move advantage,' and I will show that, while the first three assertions can be analyzed in terms of concepts (those of 'victory,' 'attack,' and 'cheating') which are not constituted by the rules of chess but are rather common to several different competitive games, being typical of the broader practice of competitive game-playing of which chess is an instance, the fourth assertion includes a concept (that of 'first-move advantage') which is peculiar to chess, just like a rule-constituted element, but is not constituted by the rules of chess. This analysis will lead to a new categorization of institutional concepts. Apart from rule-constituted institutional concepts, which are the only ones recognized by Searle, in order to account for cases (1), (2), and (3) I will distinguish between three kinds of meta-institutional concepts, namely, goal-oriented, mode-oriented, and value-oriented meta-institutional concepts, and then I will introduce the category of para-institutional concepts to account for case (4). -/- Finally -- and this is the third step of my argument -- I will explain how these different kinds of institutional concepts appear when we adopt different perspectives on the institutional frameworks we deal with. This will lead us to a categorization of possible perspectives regarding law that corresponds to the previous one regarding concepts. There is first a structural perspective regarding the instantiation of institutional elements which clearly involves rule-constituted institutional concepts -- as when we say 'I am making a will.' There is then a teleological perspective regarding the goal of our institutional acts which calls into question goal-oriented meta-institutional concepts -- as when we say 'I wrote that will in order for you to have a distinctive right to my property.' Then, we can adopt a strategical perspective regarding some peculiar ways in which institutional acts can be performed, and this has often to do with mode-oriented meta-institutional concepts -- as when we say 'the Labour Party is making parliamentary obstructionism so that the Government will fall before the enactment of the labour reform,' or 'workers start today a work-to-rule action.' Clearly, we can also adopt an evaluative perspective over institutional facts or acts, and here typically value oriented meta-institutional concepts emerge -- as when we say 'that rule is clearly unjust' or 'that contract is unfair.' Finally, we can limit ourselves to a descriptive perspective on phenomena which are peculiar to a given institutional setting, and here para-institutional concepts are often useful -- as when we say 'the Italian electoral system before 1990 led to a sort of reform paralysis' or 'a strict use of the criterion requiring proof beyond any reasonable doubt can be expected to entail a low conviction rate.'. (shrink)

The article analyzes the main provisions of the Robert Alexy’s philosophy of law as an integrated system, which at the same time remains open for further expansion of meanings. It demonstrates how the main motive of the Alexy’s philosophy of law – «the institutionalization of reason» as a combination of real and ideal dimensions of law in the institutions of liberal democracy – series takes place in the three components of his philosophicallegal system: the theory of legal argumentation, the theory (...) of constitutional rights and non-positivistic concept of law.Alexy’s non-positivist theory of law is based on the premise that there is a necessary link between the legal validity, or legal correctness, on the one hand, and moral acceptability or moral correctness on the other. This relationship is based on the dual nature of law: it has the actual dimension, defined by the authority and social efficiency, and ideal dimension that is moral correctness.The actual dimension of law is based on the need to ensure legal certainty and legal effectiveness. The argument from the ideal dimension of law is that the law imposes the claim to correctness. According to Alexy normative judgment is correct if and only if it is the result of rational practical discourse. Terms of discursive rationality determined through the principles, rules and forms of general practical discourse. Its procedural core makes up the rules guaranteeing the freedom and equality in the discourse, giving everyone the right to participate in it and the right to ask questions, and defend any point of view. The fact that the rules of discourse express the value of freedom and equality is the basis for the justification of human rights. This means that human rights are discursively necessary, and their objection is discursively impossible.Two dimensions of law are combined in an inclusive non-positivism, which claims that the moral defects deny the validity only if the limit of extreme injustice broken. Procedural aspects of connections positivity and correctness are realized in the form of democratic or discursive, constitutionalism, the main elements of which – democracy and constitutional rights. (shrink)

En el debate entre el positivismo y el no-positivismo el argumento del relativismo tiene un papel fundamental. Tal y como es presentado, por ejemplo, por Hans Kelsen, este argumento señala, en primer lugar, que una conexión necesaria entre el derecho y la moral presupone la existencia de elementos morales objetivos, absolutos y necesarios, y, en segundo lugar, que estos elementos morales objetivos, absolutos y necesarios no existen. Mi respuesta a esto es que los elementos morales absolutos, objetivos y necesarios existen, (...) porque los derechos humanos existen, y éstos existen porque son fundamentables. In the debate between positivism and non-positivism the argument from relativism plays a pivotal role. The argument from relativism, as put forward, for instance, by Hans Kelsen, says, first, that a necessary connection between law and morality presupposes the existence of absolute, objective, or necessary moral elements, and, second, that no such absolute, objective, or necessary moral elements exist. My reply to this is that absolute, objective, or necessary moral elements do exist, for human rights exist, and human rights exist because they are justifiable. (shrink)