. Gustav Radbruch is one of the most important German-speaking philosophers of law of the twentieth century. This paper raises the question of how to classify Radbruch's theories in the international context of legal philosophy and philosophy in general. Radbruch's work was mainly influenced by the southwest German school of Neo-Kantianism, represented by Windelband, Rickert, and Lask. Their theories of culture and value show an affirmative-holistic understanding of philosophy as a source of wisdom and meaningfulness. Kant, on the other hand, (...) belongs more to a fundamentally different, critical camp of philosophy. Although Radbruch has incorporated Kantian Elements into his theory, he is rather a member of the affirmative-holistic camp. In the end the question will be raised as to what ought to be preserved of his philosophy. (shrink)

In modern jurisprudence it is taken as axiomatic that John Austin's sanction-based account of law and legal obligation was demolished in H.L.A. Hart's The Concept of Law, but Hart's victory and the deficiencies of the Austinian account may not be so clear. Not only does the alleged linguistic distinction between being obliged and having an obligation fail to provide as much support for the idea of a sanction-independent legal obligation as is commonly thought, but the soundness of Hart's claims, as (...) well as the claims of many legal theorists who have followed him, depend on a contested view of the nature of legal theory. If the task of a theory of law, as Joseph Raz and others have influentially argued, is to identify the essential features of the concept of law, then the theoretical possibility, if not the empirical reality, of a sanction-free legal system is what is most important. But if the task of a theory of law is to provide philosophical and theoretical illumination of law as it exists and as it is experienced, then a theory of law that fails to give a central place to law's coercive reality may for that reason be deficient as a theory of law. The question of the soundness of the Austinian account, therefore, may be a function of the answer to the question of what a theory of law is designed to accomplish. (shrink)

Group agents have been represented as expressive fictions by those who treat ascriptions of agency to groups as metaphorical; as pragmatic fictions by those who think that the agency ascribed to groups belongs in the first place to a distinct individual or set of individuals; and as theoretical fictions by those who think that postulating group agents serves no indispensable role in our theory of the social world. This paper identifies, criticizes and rejects each of these views, defending a strong (...) realist position. (shrink)

This paper deals with the problems involved in the concept of knowledge in the sphere of law. Traditionally, the idea of knowledge has dealt with the presumption of given objects of information. According to this approach, knowing means finding these objects. This is the natural and understandable foundation of metaphysical or philosophical realism. Cognition and cognitive interest are directed outside the sentences by which they are described. This is the point of departure of legal positivism as well. However, it is (...) not possible to see valid law as totally independent of language and concepts. This makes the idea of legal facts as institutional facts vague. From a practical viewpoint, the sentences of judges and legal scholars, when they present valid law, justify rather than describe. Their crucial function is interpretation. Hence, the objectivity of these sentences cannot be based on the presumption of separate objects either. Instead, it has to be based on the principles of acceptable reasoning. Moreover, the author claims that this kind of approach, united with the utilization of human rights and substantial legal principles, leads one to acknowledge objective values. (shrink)

The concept of group moral responsibility is apparently problematic, in that it is unobvious in what sense a group, which is evidently not a conscious rational subject like an individual person, can be held morally accountable. It is unclear how a group can be said to have the ability to form beliefs and intentions needed for genuine group actions of moral assessment. Broadly speaking, there are two separate platforms from which one can investigate this problem: individualism and collectivism. Subscribing to (...) the doctrinal position of methodological individualism, individualists suggest that individual members are the only capable entities, who can meaningfully bear the burden of moral responsibility, either individually or in a shared way. Collectivists, on the other hand look for an alternative position wherein they advocate the genuine possibility of attributing moral responsibility to groups qua groups. The collectivist approach has received substantial philosophical attention in recent years. However, most supporters of collectivism search for such possibility without strongly invoking the idea of group moral agency. In this article, I argue for an irreducible moral agential status of groups in terms of the intentional actions of their constituent individual members and their special conglomeration. I suggest that certain collective or group entities are capable of being identified as proper agents of moral assessment analogous to that of individual agents of similar assessment. (shrink)

Philosophers traditionally have been concerned both to explain intentional behavior and to evaluate it from a moral point of view. Some have maintained that whether actions (and their consequences) properly count as intended sometimes hinges on moral considerations - specifically, considerations of moral responsibility. The same claim has been made about an action's properly counting as having been done intentionally. These contentions will be made more precise in subsequent sections, where influential proponents are identified. Our aim in this paper is (...) to show that familiar defenses of these more precise claims are unpersuasive and that the claims do not merit acceptance. Our concern, more broadly, is to illuminate the place occupied by intention and intentional action in a conceptual scheme suited both to explanatory needs in the philosophy of mind to evaluative needs in moral philosophy. (shrink)

Criminal liability for acts committed by AI systems has recently become a hot legal topic. This paper includes three different contributions. The first contribution is an analysis of the extent to which an AI system can satisfy the requirements for criminal liability: accomplishing an actus reus, having the corresponding mens rea, possessing the cognitive capacities needed for responsibility. The second contribution is a discussion of criminal activity accomplished by an AI entity, with reference to a recent case involving an online (...) bot, the Random Darknet Shopper. This discussion will provide the context for the analysis of commonalities and differences between criminal activities by humans and by artificial systems. The third contribution concerns the evaluation of different ways of addressing criminal activities by AI systems in a regulatory perspective. (shrink)

This paper argues that an instance of trash-talking is permissible if and only if the relevant sports organization’s system of rules permits the expression. The argument for this position rests on the notion that if there is no relevant side-constraint on trash-talking, then if the player commits to a moral boundary on trash-talking then that is the moral boundary on trash-talking. I then argued that there is no relevant side-constraint on trash-talking and that the players commit to the ownership theory (...) as the moral boundary on trash-talking. Hence, the ownership theory is the moral boundary for trash-talking. I then considered a number of objections, the most important of which are that there is a side-constraint against trash-talking because it is degrading, disrespectful, exploitative, or objectifying and that the ownership theory is false because it confuses what is wrong with what is penalized. (shrink)

This article builds on the notion of legal tolerance and analyzes the scope of its definition. It situates the notion in the complex set of relations occurring between the major systems of society. Generally, legal tolerance, as a concept, is understood in light of the possibilities of the legal system of influencing other major systems? responses. On the other hand, tolerance is also the response of the legal system in respect to other major systems? communications. Although there is a common (...) understanding of tolerance as ?under punishing bias? in criminology or as political tolerance in political science, 1 the focus of this article is different. The central points here are, first, the analysis of legal tolerance as part of systemic communications and, second, the historicity of the transformations of the nation-state in its ability to cope with the growth of separate, distinct and partial systems of society. Tolerance seems relational and raises questions such as: ?How much can the legal system tolerate?? And also, ?Which societal topics belong to the social system's domain-matter?? These questions are relevant given that the concept of legal tolerance depends on the possibilities of a given system to steer, to direct or to influence other major systems? behavior, or to resist, respond or to address other systems, which are in its environment. The concept of legal tolerance requires an analysis of a cluster of related definitions to assess the implications of the concept. These definitions are the following: (1) The concepts that result from the historical process of structuration and that explain the emergence of social systems. (2) The definition of reflexivity and its relation with the ?second order cybernetics dilemma.? This is the place where heuristic and epistemological problems are found. Such problems result from both the problem of representation and from the ontological status of the real. This analysis will show why reflexivity is a key concept to explaining the transformations suffered by such systems. Then, legal tolerance is a newer development in respect to the idea of planning. As an alternative to hard planning, legal tolerance creates a fostering environment. Instead of a single system directing other systems, legal tolerance is relational and created collectively by the organizational national state using its (limited) power of legal creation. Legal tolerance also stems from the concerned subsystems of the society (economy, law, politics, science, along with others) by means of a variety of legislative products, public policies, alliances, and legal and other scientific communications that emerge as coordinating mechanisms among the alluded major subsystems. (shrink)

El realismo jurídico como teoría positivista del derecho Desde los años sesenta del siglo XX, siguiendo a Bobbio, todo el mundo puede distinguir entre tres formas de positivismo jurídico : metodológico, teórico, y ideológico. Por cierto, en la literatura iusfilosófica italiana, a menudo se contrapone el LP al realismo jurídico. Sin embargo, ¿de qué tipo de LP y de LR estamos hablando? En cuanto al LR, los iusfilósofos que oponen realismo y positivismo tienen en mente esencialmente el realismo escandinavo, especialmente (...) Olivecrona y Ross. En cuanto al LP, aquellos iusfilósofos que oponen realismo y positivismo tienen en mente, o bien la teoría del derecho dominante en el siglo XIX, o bien la teoría pura de Kelsen. La oposición entre el LR y la teoría pura es fundada. No obstante, tal oposición no surge de una supuesta postura anti-positivista del LR. Depende más bien de dos tesis kelsenianas no positivistas : el concepto de validez como fuerza vinculante, y la teoría normativa de la ciencia jurídica, concebida como un conjunto de oraciones deónticas que se hacen eco de normas válidas. La oposición entre el LR y el LP del siglo XIX es igualmente fundada, pero no tiene sentido cuando referida al LP contemporáneo, que consiste principalmente en una actitud metodológica hacia el derecho. El LR es una visión abiertamente positivista del derecho. Sin duda, no todos los juristas positivistas son realistas, pero todos los realistas son positivistas. (shrink)

The author discusses a number of issues in the theory of legal sources. The first topic is whether sources should be conceived of as acts or texts. The alternatives are connected with two competing theories of legal interpretation (viz., the cognitive theory and the sceptical theory), which entail different concepts of legal rules and law‐making. The second topic is whether a “formal” or a “material” criterion of recognition of sources should be preferred. The third section is devoted to the analysis (...) of rules of change. Four theories of rules of change are discussed, and five kinds of such rules are distinguished. The fourth section concerns judicial law‐making, with special reference to the creation of new legal rules by constitutional courts. (shrink)

This article is the first in a series in which I propose to draw on the emergent and poly/trans disciplinary field of Food Studies in order to pursue questions of national identity, political struggle, cultural resistance and psychological survival in Palestine. There are several perspectives from which this connection between food and territoriality may be theorised. At first instance, for the purposes of this paper, I ask whether it is appropriate to draw on the cultural property paradigm in order to (...) spotlight the possibilities and significance of claiming their cuisine as the intangible cultural heritage of Palestinians. This essay is a rhetorical cry for the repatriation and rehabilitation of regional specialties. The need to acknowledge, safeguard and celebrate Palestinian culture, its distinctive genius and the abundance and refinement of its traditions is part of the struggle for meaningful political change. The Palestinian ethnographic research included in this paper was conducted in collaboration with Bait al Karama, a local NGO founded and run entirely by women, for local women. My methodology is rooted in the relationship between activism and academia. (shrink)

The mark of ‘the political’, according to Bernard Williams, lies in a society finding an answer to the ‘first political question’—the ‘Hobbesian’ question of how to secure ‘order, protection, safety, trust, and the conditions of cooperation’. It is first because ‘solving it is the condition of solving, indeed posing, any others’. Williams also argues that a political order differs from an ‘unmediated coercive’ order in that it seeks to satisfy the ‘Basic Legitimation Demand’ that every legitimate state must satisfy if (...) it is to show that it wields authority over those subject to its rule. To meet that demand the state ‘has to be able to offer a justification of its power to each subject whom by its own lights it can rightfully coerce under its laws and institutions’. My paper argues that this set of issues is the central concern of legal theory and that, suprisingly, it is resources in the legal positivist theories of Hans Kelsen, H. L. A. Hart and Joseph Raz that can help us to see how a political order has to be constituted as a legal order before it becomes capable of answering the BLD. The argument is that the idea of acceptance in positivist legal theory imports the main components of the social contract tradition, which are necessary if law is to be understood as a matter of authority. Once imported, the central question for philosophy of law becomes the legal subject’s question, ‘But how can that be law for me?’. (shrink)

In British and continental constitutional theory, the sovereign provides a mouthpiece for the law, helping present a unified body politic. For Hegel too the sovereign is a function for the unity of the people. But it is the subject’s desire, which brings the sovereign into existence as guarantor of the law’s coherence and closure. The spontaneous insurrection of December 2008 in Greece weakened the hold of the sovereign on the subject. The post-political condition was challenged by the unplanned actions of (...) resistance and performance by people who have been excluded from political visibility. (shrink)

This paper is concerned with how a particular logic informed the articulation of ‘Liberia’ from its conception as an idea of liberty at the beginning of the nineteenth century to its consolidation as a nation-state in the twentieth. The paper begins with an examination of the logic itself, through a reading of John Austin’s lecture on ‘things’. This reveals a logic operating through a legal framework that can render an object entirely fungible. The logic, I argue, is the logic of (...) capital. The paper then turns to the making of Liberia to show how this logic was super-imposed over lands and peoples in west Africa through a process of colonisation, which, since the Roman colōnia, has involved both the introduction of civilisation and the cultivation of new land. The argument running through this history is that, at each point, the legal-representational framework that was supposed to liberate its object—human and land—was informed by the logic of capital. On this logic, liberation would come with the super-imposition of a general value: rendering humans productive citizens, and rendering land productive territory, through the investment of rights. However, the result was that, what began at the start of the nineteenth century as an idea of liberty that was supposed to make free all of Africa, culminated at the end of the twentieth century in a state of civil death, and eventually revolution and war. (shrink)

General theory of law (general jurisprudence, allgemeine Rechtslehre) has often claimed to deal with general or universal concepts, i.e., concepts which are deemed to be common to any legal system whatsoever. At any rate, this is the classic determination of such a field of study as provided by John Austin in the nineteenth century—a determination, however, which deserves careful analysis. In what sense, indeed, can one assert that some legal concepts are common to different legal systems? And, above all, in (...) what sense can one assert that some concepts are common to different languages and cultures? My paper sets out to discuss such questions—although, obviously, they are too complicated to be answered in a single paper. The first section reconstructs the Austinian argument for general jurisprudence by placing it in its historical context. The second section tries to apply to legal concepts some suggestions derived from the contemporary debate on conceptual relativism. The third section, returning to the Austinian problem, comes to the following conclusion: Even if conceptual relativism were true and there were no general or universal legal concepts, this would not invalidate in any way the didactic and scientific value of (general) theory of law. (shrink)

The purpose of this article is to clarify the concept of “Anglo-American philosophy of law” and highlight the debate on its subject. Both the geographical reference to the Anglo-American tradition and the content of the philosophy of law itself need to be clarified. In order to understand what the Anglo-American philosophy of law is and what is the essence of the debate around its subject matter the author of the article firstly investigates the main stages in the development of the (...) Anglo-American philosophy of law, beginning with Jeremy Bentham and ending with modern authors. As a result, we arrive at a conclusion that the ways of development of the philosophical and legal tradition in Great Britain and the United States are not identical. Secondly, we should analyze the term “philosophy of law”. Overwhelming majority of Anglo-American scholars identify the terms “legal philosophy”, “jurisprudence” and “analytical legal positivism”. Therefore, “philosophy of law” and “jurisprudence” mostly are used as synonyms. It is also important that the concept “jurisprudence” in the Anglo-American Academy is not used in its wide sense as in Russian science. It includes only abstract theoretical, not practical, study of law and general legal concepts and theoretical foundations of branches of law and legal systems. The author concludes that the debate about the method that has been going on since the 50s of twenty century between positivists and anti-positivists, smoothly turned into a new dispute about the subject matter of Anglo-American philosophy of law. The main object of the dispute is the legal philosophy “analytical core”. Supporters of the core use a conceptual analysis of legal concepts beyond time, politics, morality, and social context. The author of the article analyzed the main critical papers devoted to the current state of the legal philosophy and came to the conclusion that we can distinguish two major types: papers that criticize the “analytical core” of the philosophy of law and try to separate pluralistic jurisprudence and limited abstract legal philosophy, papers which tend to change the very philosophy of law, reorienting it to the social context, political philosophy, ethics, etc. Also, as a result of the research two different understandings of the content of analytical philosophy of law were discovered. First on the one hand is analytical positivism, which includes legal positivists. On the other hand, in a broader sense, it is perceived as an intellectual style. In this sense we can call anti-positivists like natural lawyer J. Finnis and the founder of legal interpretivism, R. Dworkin as analytical scholars. (shrink)

In this thesis I outline a view of primary legislation from a systems perspective. I suggest that systems theory and, in particular, autopoietic theory, as modified by field theory, is a mechanism for understanding how society operates. The description of primary legislation that I outline differs markedly from any conventional definition in that I argue that primary legislation is not, and indeed cannot be, either a law or any of the euphemisms that are usually accorded to an enactment by a (...) parliament. I cite two reasons for such a conclusion. The primary reason for my conclusion is that I see primary legislation as being an output of a particular subsystem of society, while the law is the output of another subsystem of society. I argue that these outputs are the discrete products of separate subsystems of society. I argue that primary legislation should be viewed as a trinity. The first state of this trinity is that, upon enactment, primary legislation is a brute fact in that it is but a thing and the only property of this thing is that of being a text. The second state of this trinity is that following the act of enactment, the thing enacted will be reproduced and this reproduction is a separate thing that will sit in some repository until used. The third state of this trinity is that, upon use, this thing that is primary legislation will be transformed into an object and the user will attribute such functions and attributes to that object as are appropriate to the context within which the object is used. The thing has therefore become an object and an institutional fact. The second reason for my conclusion that primary legislation is not a law relates to the fact that the thing that is primary legislation is a text and the only function of a text is that it is available to be read. That is to say, of itself, a text is incapable of doing anything: it is the reader who defines the status of the text and attributes functions and attributes. Upon use, primary legislation thus becomes a censored input for future action and one of these actions may be some statement by a court of law. I assert that the view of primary legislation that has been accepted within the body politic is the product of the discourse of a particular subsystem of society that I have designated 'the legal practice', and I outline why and how this has occurred. Outlining a view about primary legislation also necessitates outlining a view as to the nature of the law. I assert that the law is a myth and I see this myth as a product of the discourse of the legal practice. I have asserted that although it is the judges that state the law, such statements flow from the discourse of those who practise the law. (shrink)

In this paper, I outline a theory of social kinds. A general theory of social kinds has to set out at least three conditions: existence conditions, persistence conditions, and identity conditions. For the sake of expediency, I focus on the existence and persistence conditions. The paper is organized just as life: first with existence, then persistence. I argue that anti-realism is more attractive than realism as an account of the existence conditions, despite the fact that realism has been under-appreciated. Then (...) I argue for a particular theory of the persistence conditions, which I call the basic overlapping traits theory (BOTT), based on an analogy to an approach to personal identity. The upshot of the argument is that from an anti-realist metaphysics we have the capacity to discuss a wider diversity of social phenomena. (shrink)

Draft as of 2001 of a book chapter a^ppeared in 2005. This paper gives an account of the belief/ acceptance distrinction applied to the issue of collective beliefs and intentionality in terms of the "doctrinal dilemma" proposed by some legal theorists.