The aim of this paper is to introduce a system of dynamic deontic logic in which the main problems related to the de finition of deontic concepts, especially those emerging from a standard analysis of permission in terms of possibility of doing an action without incurring in a violation of the law, are solved. The basic idea is to introduce two crucial distinctions allowing us to differentiate (i) what is ideal with respect to a given code, which fixes the types (...) of action that are abstractly prescribed, and what is ideal with respect to the specific situation in which the agent acts, and (ii) the transitions associated with actions and the results of actions, which can obtain even without the action being performed. (shrink)

It is my aim in this paper to show that the contemporary assimilation of essence to modality is fundamentally misguided and that, as a consequence, the corresponding conception of metaphysics should be given up. It is not my view that the modal account fails to capture anything which might reasonably be called a concept of essence. My point, rather, is that the notion of essence which is of central importance to the metaphysics of identity is not to be understood in (...) modal terms or even to be regarded as extensionally equivalent to a modal notion. The one notion is, if I am right, a highly refined version of the other; it is like a sieve which performs a similar function but with a much finer mesh. (shrink)

Some recently-proposed counterexamples to the traditional definition of essential property do not require a separate logic of essence. Instead, the examples can be analysed in terms of the logic and theory of abstract objects. This theory distinguishes between abstract and ordinary objects, and provides a general analysis of the essential properties of both kinds of object. The claim ‘x has F necessarily’ becomes ambiguous in the case of abstract objects, and in the case of ordinary objects there are various ways (...) to make the definition of ‘F is essential to x’ more fine-grained. Consequently, the traditional definition of essential property for abstract objects in terms of modal notions is not correct, and for ordinary objects the relationship between essential properties and modality, once properly understood, addresses the counterexample. (shrink)

Within the criticism that has been made of the principle of proportionality, I intend to contribute to the deepening and improvement of what is understood as the test of proportionality in its narrow sense, which has been the main target of critics. Firstly, I will come up with a conceptual framework which I understand will allow for a better understanding of the norm of proportionality. Secondly, from an analytical perspective, I will explain my understanding of the structure of the norm (...) of proportionality. And, thirdly, I will focus on proportionality in its narrow sense and especially on the Alexy’s weight formula. Here, however, I will frame this effect of proportionality in the light of the philosophy of measurement to explain what is truly done within the scope of this principle; then I will try to reconstruct the metaphor of the weight formula in the light of the compressive strength phenomenon. Finally, I will move on to a mapping of criteria that provide legal operators with a better justification of the intensity measurement of restrictions made to the fundamental rights’ norms. (shrink)

Modern empiricism has been conditioned in large part by two dogmas. One is a belief in some fundamental cleavage between truths which are analytic, or grounded in meanings independently of matters of fact, and truth which are synthetic, or grounded in fact. The other dogma is reductionism: the belief that each meaningful statement is equivalent to some logical construct upon terms which refer to immediate experience. Both dogmas, I shall argue, are ill founded. One effect of abandoning them is, as (...) we shall see, a blurring of the supposed boundary between speculative metaphysics and natural science. Another effect is a shift toward pragmatism. (shrink)

We analyse the relationship between applicability and effectiveness of legal norms from a philosophical perspective. In particular, we distinguish between two concepts of applicability. The external applicability of norms refers to institutional duties; a norm N is externally applicable if and only if a judge is legally obliged to apply N to some case c. Internal applicability refers instead to the sphere of validity of legal norms. A norm N is internally applicable to actions regulated by its sphere of validity. (...) We also explore the consequences of a thesis which maintains that applicability restricts the concept of effectiveness, so that only applicable norms can be considered effective. Our analysis illustrates that a proper reconstruction of the concept of applicability is of great importance not only for understanding the concept of effectiveness but also for providing insight into the nature of law. (shrink)

In this paper I argue for three theses. First, most philosophical analyses of the problem of normative conflict, being based on the impossibility-of-joint-compliance test for conflict, are inadequate. Second, expanding on suggestions made by H. L. A. Hart and Stephen Munzer, I develop an understanding of normative conflict which is not tied to the concept of obedience. Such an understanding of normative conflict is expressly functional: normative conflicts arise when one norm interferes with the intended functioning of another. Third, working (...) from a functional concept of normative conflict, I develop a taxonomical classification scheme for the phenomenon of normative conflict. Normative conflict is the genus within which there are three species: normative contradiction, normative collision, and normative competition. Department of Philosophy, Southeast Missouri State University, Cape Girardeau, MO 63701, U.S.A. (shrink)

The comment consists of two parts. In the first part, I will challenge, on analytical grounds, Sampaio’s views on the kind of conflict that emerges between fundamental rights norms. I will claim that these conflicts can in fact be seen as total-total in abstracto conflicts, rather than partial-partial in concreto conflicts. In the second part, I will set forth a normative thesis advocating a possible alternative way of solving conflicts between fundamental rights norms which rests heavily on the legal system’s (...) institutional history as the necessary, although not sufficient, criterion for giving precedence to one of the conflicting fundamental rights norms. (shrink)