.The article deals with the difference between some forms of legal positivism. It is argued that, even in continental legal systems which are typically “rule bound,” there is some space left for principles in the legal system. The author tries to explain how this space can be filled and what methods should be used by a judge to do so.

The author presents a relatively formal theory of the rule of law which includes three basic components: conceptual, institutional and axiological. He then emphasizes the differences between a formal and a substantive theory of the rule of law and highlights the advantages and limits of the former. Finally, the author indicates the importance of this type of theory, namely the values it implies such as predictability, justified reliance, autonomous choice, minimization of disputes and legitimacy.**.

Justice, you might think, is the first virtue of the law. After all, we call our judges justices, the administration of law the administration of justice, and the government's legal department the Justice Department. We should reject this Priority of Justice for the Law in favor of the more moderate Priority of Justice for the Courts, the view that justice is the first virtue of the law courts. Under its comparative conception, justice is distinguishable by its concern with the relative (...) positions of subjects. I claim that legal duties divide into primary and secondary, that primary legal duties are not essentially comparative, and that this impugns the Priority of Comparative Justice for the Law. Still, the bipolar structure of litigation appears to suggest that comparative justice is the first virtue of the courts. I explain why that is not so. I then introduce a desert-based conception of justice I dub requitative justice. I argue that the Priority of Justice for the Law cannot draw succor from this conception of justice because primary legal duties are no more requitative than they are comparative. However, the special affinity between law courts and secondary legal duties suggests that requitative justice is the first virtue of the courts. Finally, I concede that the Priority of Justice for the Courts gives us reason to accept the Priority of Justice for the Law after all, if we accept the common Priority of Courts for the Law, the view that the courts are the first institution of the law. We should not do so, however. (shrink)

A renewed search for legal certainty is a reaction to the preponderance of judge made law, which has been in turn prompted by the democratic deficit of the EU and the impact of Anglo-American law. The problem is that the search is oblivious to both systematic interpretation and the need of re-systematization of law. The paper defines systematic interpretation, relates the definition to standard French and German conceptions, indicates the room for systematic interpretation in Anglo-American laws, and states prima facie (...) reasons for a re-systematization of law as a prerequisite of systematic interpretation. The problem cannot be appreciated outside its proper context. It is a disregard for causation and evaluation. Hence the paper outlines Aristotle’s understanding of causation and evaluation in his presentation of phronesis, reconsiders continental European legal thought in the light of Aristotle’s presentation, and offers policy-oriented jurisprudence as a remedy to the deficit of evaluation and causation in European legal thought. A solution to the problem offers a typology of criteria and clarifies positive and fundamental legal concepts, positive and fundamental criteria of systematization, and the place of criteria in knowledge of law. The usefulness of the criteria is demonstrated by a common approach to the systematization of law and an alternative diagnosis of a defect of systematization diagnosed by an authority in history and philosophy of law rather than legal theory. (shrink)

The author revisits H. L. A. Hart's theory of positive law and argues for a major qualification to the thesis of the separation of law and morality based on a concept of systemic legitimacy derived from the social theory of Jurgen Habermas. He argues that standards for assessing the degree of systemic legitimacy in modern legal systems can develop through reflective exercise of “critical legality,” a concept coined to parallel Hart's “critical morality,” and an expanded understanding of the “external” and (...) “internal” perspectives on legal systems. Following Habermas, he argues that modern positive law must retain systemic legitimacy. After suggesting criteria for measuring systemic legitimacy, the author concludes that the concept provides a useful approach to contemporary problems of “lawless” regimes and “law's imperialism.”. (shrink)

The philosophical tradition of liberal political thought has come to see tolerance as a crucial element of a liberal political order. However, while much has been made of the value of toleration, little work has been done on individual-level motivations for tolerant behavior. In this article, we seek to develop an account of the rational motivations for toleration and of where the limits of toleration lie. We first present a very simple model of rational motivations for toleration. Key to this (...) model is an application of David Ricardo’s model of trade to thinking about toleration. This model supports the claim that we always have reasons to be as tolerant as possible. We then explore why we do not always see tolerant attitudes in the actual world, and point to some potential preconditions for toleration that the initial model does not capture. Subsequently, we examine a more detailed model that allows us to investigate more carefully the conditions under which tolerant behavior can be rewarded. We conclude by arguing that a consideration of self-interested motivations for toleration is essential to the success of a robust theory of toleration for a diverse society, but that even this approach has its limitations. (shrink)

This article is aimed at representing the approaches of legal theory to the interaction between law and politics and to depict the main national features of the relationship between law and politics. The analysis is based on the adoption of methodology of fundamental work of Mauro Zamboni “Law and Politics”. The adoption of methodology was used only partially, while seeking to identify and clarify the features of static, dynamic and epistemological aspects of the relationship of law and politics in Lithuania. (...) Researchers have faced the problem of a diverse approach to the definitions of law and politics, and it has been resolved by focusing only to the researches representing the standpoint of legal theories. The analysis has led to the findings that there are reasonable grounds to assume that legal content (referring to the “static” aspect of law and politics) in Lithuania is flexible to outgoing politics. This implication is based on 1) the noticeable disproportion of legal regulation in different areas of social life, 2) law-making priority areas determined mostly by the choice of political actors will and 3) through changed execution of legal norms, prefering the forms which could be more cost effective (alternative dispute resolutions) and more suitable for changing social environment. What concerns the “dynamic” aspect of the relation between law and politics, it is implicated that there are backings for both open and closed law making, but at the same time more open legislative features are observed than the closed ones. This tendency is identified in the legislative process, where the help out of non-legal world is applied (using sociology) and the persistence of politicians to access and use the institutes of citizens’ legislative initiative (iniciatives for referendums or other legislative initiatives, the right to petition, etc.) is obvious. The reflection of „epistemological“ aspect of the relationship between law and politics in Lithuanian legal discipline reflects the general trend of international scientific community of law. It is considered to step back from the autonomous legal discipline concepts and in this way the appropriate conditions for incorporation of different categories from other scientific fields are created. On the other hand, a reserved cautious attitude of both researchers and research institutions on the conjunction of law and political science is observed. The interaction between law and economics and business or public relations is still prioritized. (shrink)

This article considers procedural justice in the law, with specific reference to the adjudicative context of governmental officials applying legal standards to particular cases. We critically survey the three main accounts of procedural justice in the literature: utilitarian, outcome‐based, and dignitarian. Utilitarian and outcome‐based theories share the instrumental view that the only purpose of procedures is to lead to accurate legal outcomes. However, the former are willing to trade off the benefits of accuracy against its costs, whereas the latter hold (...) that procedural rights are necessary to guard against the injustice caused when individuals' legal rights are mistakenly denied. Dignitarian theories maintain that process matters apart from outcomes, because procedures should show respect for individuals' dignity in the Kantian sense of rational agency. We present a new perspective, drawing on relational theory. Relational theory holds that we are social creatures whose self‐identities and sense of self‐respect are bound up with the quality of our relationships with other individuals, groups, and institutions. Our relational account is informed by empirical research in social psychology which has found that people's evaluation of procedures is substantially influenced by relational concerns. (shrink)

This article outlines the foundations of a nomos-observing theory of social justice, termed ‘rule egalitarianism’, that explains how the seemingly contradictory merger of classical liberalism and s...

Historically, it is safe to say that very few laws did as much to stoke inequality as laws touching descents and hereditary transmissions. This paper attempts to see if the classical liberal tradition can endorse inheritance taxation so as to further fair equality of opportunity, as well as to lessen inequality of undeserved wealth. It argues that fair equality of opportunity is a necessary feature of market societies to make sure that they remain competitive. Hence, inheritance taxation is most likely (...) necessary from a classical liberal point of view as an instrument of social mobility to counter notable problems of social immobility, say hereditary vocational stratification, which a system of private property rights creates. (shrink)

The paper discusses the Anglo-American philosophy of law of the 20th century, more specifically the philosophy of law of Ronald Myles Dworkin and his criticism of the legal positivism of Herbert Lionel Adolphus Hart. The author presents the history of the criticism of legal positivism in Ronald Dworkin’s philosophy of law and distinguishes historical stages. The subject of the study is the critique of legal positivism but not the Hart-Dworkin debate itself, well known in Western philosophy of law. The reason (...) is that the discussion was conducted between Dworkin and Hart’s supporters but not between Dworkin and Hart by himself. The latter responded to the criticism only after twenty seven years. The article explains why Dworkin chose for his criticism Herbert Hart’s version of legal positivism. This is due to the fact that Dworkin highly appreciated Hart’s positivist theory of law and characterized it as the “most clear.” The article presents the methodological foundations of criticism of Hart’s legal positivism in Dworkin’s philosophy of law. It reveals a methodological divergence between the two legal theories, which directly affects the understanding of the concept of law and its content. Therefore, we can assume that the legal theories of Hart and Dworkin are two competing models of law: Dworkin’s model considers law as a set of rules and principles and Hart’s model acknowledges only rules and court decisions as a source of law. The article also presents the key principles of positivism criticized by Dworkin. These principles, firstly, interpret law as a set of legal rules determined through a special legal criterion, secondly, provide the judge with an opportunity to make a decision “at his own discretion” in a situation not regulated by law, and, thirdly, recognize only legal rights and obligations enshrined in legal regulations. It is important to note that in this article the author describes criticism as an independent phenomenon of legal philosophy with a particular focus on the history and foundations of this phenomenon. (shrink)

This article presents moral jurisprudence theory as a systematic approach to business ethics that analogizes core problems of the field to related problems in law. Adapting theoretical approaches from contemporary philosophy of law, the article develops a decision-making method for business ethics.

Law’s processes are likely always to be needed when particularly intractable conflicts arise in relation to the care of a critically ill child like Charlie Gard. Recourse to law has its merits, but it also imposes costs, and the courts’ decisions about the best interests of such children appear to suffer from uncertainty, unpredictability and insufficiency. The insufficiency arises from the courts’ apparent reluctance to enter into the ethical dimensions of such cases. Presuming that such reflection is warranted, this article (...) explores alternatives to the courts, and in particular the merits of specialist ethics support services, which appear to be on the rise in the UK. Such specialist services show promise, as they are less formal and adversarial than the courts and they appear capable of offering expert ethical advice. However, further research is needed into such services – and into generalist ethics support services – in order to gauge whether this is indeed a promising development. (shrink)

Besides their skepticism about universal reason and universal morality, the Frankfurt Schools of Critical Systems Theory and Critical Theory share basic assumptions: (1) the thinking in societal-systemic, institutional concepts, which transcend simple reciprocal relations by dint of their complexity; (2) the assumption that society is based on fundamental paradoxes, antagonisms, antinomies; (3) the strategy to conceptualize justice as a contingent and transcendental formula; (4) the form of immanent (and not morality-based, external) critique as an attitude of transcendence; (5) the aim (...) of societal (and not only political) emancipation in an ‘association of free individuals’ (Marx). The article focuses on those parallels and aims to conceptualize a critical turn-around of autopoietic systems theory. (shrink)

This paper is a critical notice of Philip Pettit's On the People's Terms: A Republican Theory and Model of Democracy. Pettit argues that only Republicanism can respond appropriately to the ‘evil of subjection to another's will – particularly in important areas of personal choice’ because its ideal of liberty – freedom as non-domination – both captures better than liberalism our commitment to individual liberty and explains better our commitment to the legitimacy of democratic decision-making than standard democrat accounts. If this (...) argument succeeds, it demonstrates that there is no real tension between the liberal thought that justice provides a standard for evaluating public decisions independent of the fact that they are taken democratically and the democratic thought that the fact that a decision is democratic suffices to make it legitimate. I argue, however, that Pettit finds himself caught between two contradictory positions: a version of Isaiah Berlin's negative concept of liberty and a positive liberty account of democracy. And I show that his attempt to resolve the tension fails because it requires him to embrace the positive liberty account he is committed to rejecting. (shrink)

War has changed so much that it barely resembles the paradigmatic cases of armed conflict that just war theories and international humanitarian law seemed to have had in mind even a few decades ago. The changing character of war includes not only the use of new technology such as drones, but probably more problematically the changing temporal and spatial scope of war and the changing character of actors in war. These changes give rise to worries about what counts as war (...) and thus what norms to use in evaluating a particular conflict. In this paper, I develop an argument that the changing character of war gives us reasons to take reductionist revisions of just war theory seriously. By reductionist theories of war I mean those revisions within the just war tradition that suggest that we can use ordinary peacetime interpersonal analyses of moral responsibility and liability to harm to decide what justice requires in times of war. (shrink)

This essay formulates eight goals that have emerged from worldwide moral deliberation on "transitional justice" and that may serve as a useful framework when particular societies consider how they should reckon with violations of internationally recognized human rights.

My aim is to vindicate two distinct and important moral categories – ideals and aspirations – which have received modest, and sometimes negative, attention in recent normative debates. An ideal is a conception of perfection or model of excellence around which we can shape our thoughts and actions. An aspiration, by contrast, is an attitudinal position of steadfast commitment to, striving for, or deep desire or longing for, an ideal. I locate these two concepts in relation to more familiar moral (...) concepts such as duty, virtue, and the good to demonstrate, amongst other things, first, that what is morally significant about ideals and aspirations cannot be fully accommodated within a virtue ethical framework that gives a central role to the Virtuous Person as a purported model of excellence. On a certain interpretation, the Virtuous Person is not a meaningful ideal formoral agents. Second, I articulate one sense in which aspirations are morally required imaginative acts given their potential to expand the realm of practical moral possibility. (shrink)

Research using current literature on legal reasoning was conducted with the goals of (a) determining what skills are most important in good legal reasoning according to such literature, (b) determining the extent to which existing Law School Admission Test item types and subtypes are designed to assess those skills, and (c) suggesting test specifications or new or refined item types and formats that could be developed in the future to assess any important skills that appear [by (a) and (b)] to (...) be measured in a limited or minimal way by the current LSAT. So far as can be determined, such systematic research using legal reasoning literature has never been previously conducted. This report presents the findings of this research. (shrink)