Feminist legal theory has undergone some significant changes over the past thirty years. This article provides an introductory overview of feminist legal theory, from liberal and radical feminism through to postmodernism. It outlines some of the major current issues within feminist legal thought, notably debates surrounding culture and religion, the relationship of sex and sexuality scholarship to feminist research, and the position of women within transitional societies.

A critical analysis of Kelsen’s theory leads to a broad concept of custom, which covers diverse types of customary norms, where the always required conviction of legal bindingness depends on different types of factual and normative reasons. In it we should include a strict concept of custom or legal usage, derogating custom, custom of general international law, custom that establishes an unwritten constitution, custom that establishes a new written constitution, judicial custom which creates a rule of precedent and (...) custom newly expressed in the judicial application of customary rules. The basic norm could be formulated as a constitutive norm: ‘If the norms created through the first historical constitution are effective, then the first historical constitution are valid.’ It is thus a customary constitutive rule that recognizes the first historical constitution as valid law. Norms which establish sources of law are constitutive rules, they can be customary norms or legislated norms, but if they are legislated, they have their validity recognized by, directly or indirectly, a constitutive customary norm. By using a broad concept of custom as a conventional practice, Hart implies that general recognition of a customary rule, together with the practice that accompanies it, are sufficient conditions of validity. A doctrine of recognition that is arrived at by means of criticism and a rational reconstruction of the doctrines of Kelsen and Hart regains the essential theses of the traditional recognition theory of Bierling and Engisch. (shrink)

A critical analysis of Kelsen’s theory leads to a broad concept of custom, which covers diverse types of customary norms, where the always required conviction of legal bindingness depends on different types of factual and normative reasons. In it we should include a strict concept of custom or legal usage, derogating custom, custom of general international law, custom that establishes an unwritten constitution, custom that establishes a new written constitution, judicial custom which creates a rule of precedent and (...) custom newly expressed in the judicial application of customary rules. The basic norm could be formulated as a constitutive norm: ‘If the norms created through the first historical constitution are effective, then the first historical constitution are valid.’ It is thus a customary constitutive rule that recognizes the first historical constitution as valid law. Norms which establish sources of law are constitutive rules, they can be customary norms or legislated norms, but if they are legislated, they have their validity recognized by, directly or indirectly, a constitutive customary norm. By using a broad concept of custom as a conventional practice, Hart implies that general recognition of a customary rule, together with the practice that accompanies it, are sufficient conditions of validity. A doctrine of recognition that is arrived at by means of criticism and a rational reconstruction of the doctrines of Kelsen and Hart regains the essential theses of the traditional recognition theory of Bierling and Engisch. (shrink)

This chapter contains sections titled: Introduction Political Reflexivity and the Boundaries of Legal Order Legal Unity and Political Plurality Question and Response Human Rights and the Dialectic of Cosmopolitanism Bidding Farewell to Communitarianism and Cosmopolitanism Acknowledgments References.

This article examines the grappling of modern positivists with the question of legal unity. It presents and contrasts two antagonistic positivist strands—naturalist and normativist—epitomized in the works of Austin and Kelsen, respectively. The two strands correspond to two contrasting models of legal authority—criterial and coherence-based—and they accordingly diverge on the proper explanation of unity. Naturalist, criterial models purport to explain the unity of law based on extra-legal facts alone; normativist, coherence-based models resort strictly to (...) the interrelation of legal elements themselves. Against this backdrop, the article argues that Raz’s work on the subject is torn between Austin and Kelsen: While his naturalist ancestors accounted for legal unity externally, Raz’s prominent works are captivated by the Kelsenian realization that the unity of law must be accounted for internally. Two central upshots follow. First, the analysis provides a litmus test for the (in)ability of naturalist positivism to explain legal unity. Second, Raz’s strategic reliance on Kelsen distorts his work: Both the Grundnorm and validity chains are upended to fit Raz’s naturalist commitments. (shrink)

Legal tech is growing, and its growth provokes anxieties about the future of the legal profession as such. In this article, we examine the impact of legal tech on the central role of lawyers at law firms in crafting an imagined ‘right legal answer’ by drawing on Duncan Kennedy’s suggestion that a claim to the rightness of one’s legal propositions is a central characteristic of the legal profession. We first ask how changes in the (...) organisation of legal services affect the ability of lawyers at law firms to produce that ‘right legal answer’. While legal tech only exacerbates already ongoing processes of eradication of routine tasks, we find that it continues to mask the role of ideology in arriving at a right legal answer under a new layer of technological projection. Second, we ask how lawyers’ ability to produce ‘the right legal answer’ is affected by, first, expert systems and, second, a legal tech application named Bryter, representing a no-code system. We find that expert systems do not permit to uphold the unity of the lawyer required for Kennedy’s model of the right legal answer, but that no-code systems as Bryter do so. No-code systems can be reduced to a slogan: Have the lawyer, but evict her ideological temptations more efficiently than before! (shrink)

Take “legal reality” to be the part of reality that actual legal thought and talk is dis- tinctively about, such as legal institutions, legal obligations, and legal norms. Our goal is to explore whether legal reality is disunified. To illustrate the issue, consider the possibility that an important metaphysical thesis such as positivism is true of one part of legal reality (legal institutions), but not another (legal norms). We offer two arguments (...) that suggest that legal reality is disunified: one concerns the heteroge- neity of different entities that are part of legal reality; the other concerns variation within legal thought and talk. We then show that taking the possibility of the disunity of legal reality seriously has important upshots for how we think about the positivist and antipositivist traditions, the debate between them, and their relation to other parts of legal theory, such as critical legal theory and legal realism. (shrink)

There is one truth, but many truths: i.e., one unambiguous, non-relative truth-concept, but many and various propositions that are true. One truth-concept: to say that a proposition is true is to say (not that anyone, or everyone, believes it, but) that things are as it says; but many truths: particular empirical claims, scientific theories, historical propositions, mathematical theorems, logical principles, textual interpretations, statements about what a person wants or believes or intends, about grammatical and legal rules, etc., etc. But, (...) as Frank Ramsey once said, “There is no platitude so obvious that eminent philosophers have not denied it”; and as soon as you ask why anyone would deny that there is one truth-concept, or that there are many true propositions, it becomes apparent that my initial, simple formula disguises many complexities. (shrink)

Homeopathy is a non-traditional medical treatment which came to Europe a few hundred years ago and is presently attributed to the complementary and alternative medicine. Although the assessment of evidence on effectiveness of homeopathic medicinal products has been very contradictory, homeopathy in practice is the only form of alternative medicine that has received certain legal recognition. The paper focuses on the study of the legal regulation of homeopathy in the European Union and in national law. The author analyses (...) the contents of the concept of ‘homeopathic medicinal product’ and the EU legal norms on harmonisation of procedures for registry of homeopathic medicinal products in the Member States. It is concluded that the market of homeopathic medicinal products in the EU still lacks coherence and unity. (shrink)

Originally written in 1990, this reviews largely late 20th century debates on the study of law as Logic, Discourse, or Experience; the Unity of the Legal System and the Problem of Reference; Semiotic Presuppositions of Traditional Jurisprudence (Austin, Hart, Kelsen, Dworkin, Legal Realisms); then turns to legal philosophies explicitly Employing Forms of Semiotics (Kalinowski, the Italian Analytical School, Rhetorical and Pragmatic Approaches, Sociological and Socio-Linguistic Approaches, Peircian Legal Semiotics, Greimasian Legal Semiotics and Aesthetic/Symbolic Approaches). (...) A major section then offers (from a largely Greimasian point of view) some hypotheses for legal semiotics on the Problem of Reference, Semantic and Pragmatic Levels, Semiotic Groups and “The Legal Culture”, Normativity and Justification, and finally considers the implications for particular legal phenomena: the “Legal System”, Legal Institutions, Legal Codes, Legal Rules, Rights, Courtroom Behaviour: Witness and Counsel, The Judge: Justification of Decisions on Law, and the Criminal Justice Process. A conclusion addresses the status of legal semiotics. (shrink)

In 1862 the Supreme Court of the Cape Coloy terminated the synodical unity of the Dutch Reformed Church in South Africa. Delegates of congregations outside the Colony could no longer represent them in the Cape or Mother Synod. The court used Ordonnance 7 of 1843 of the Colony. In 1907 the newly founded Federal Council of Dutch Reformed Churches decided to lead an effort in the Church to replace this federal bond with a closer synodical bond. The Council was (...) a combined body of the four Dutch Reformed Churches of respectively the Transvaal, Free State, Natal and Cape. However, to achieve this, they needed the help of the state authorities of the Union of South Africa to scrap all legal obstacles in the way of the Dutch Reformed Church. After consultations with the authorities, the Church was asked to formulate a concept act to replace these hindrances. The act was accepted by Parliament, but the Church could not get the required three quarters of a majority in three quarters of its consistories for the bill to be accepted. Thus, the effort for a new synodical unity failed. CONTRIBUTION: This article adds to the history of the synodical structure in the Dutch Reformed Church. In doing so it concentrates on the failed attempt in this church in 1911 to form an all-inclusive - as far as congregations are concerned - synodical bond with attention to the required church political principles behind such a structure. This is also relevant to the present efforts for unity in the family of Dutch Reformed Churches, as well as other reformed churches in Southern Africa. The approach is a reformed perspective on the relationship between state and church. (shrink)

Lord Rabinder Singh has been one of the leading lights in the recent development of the common law, most notably in the field of human rights and the law of privacy. Here, for the first time, he reflects on the defining themes of his career as advocate and judge. Combining his trademark originality of thought and impeccable scholarship, he selects previously published and unpublished writings to track the evolution of his approach to the common law. A substantial introduction gives context (...) to the book, while opening introductions to each piece reflect on their relevance to contemporary legal thought. The essays explore themes as diverse as judicial review, equality, and privacy and personal autonomy. Insightful, erudite, and thought-provoking, this collection is a must read for all those interested in the law and its role in society. (shrink)

This essay partly builds on and partly criticizes a striking idea of Dieter Henrich. Henrich argues that Kant's distinction in the first Critique between the question of fact (quid facti) and the question of law (quid juris) provides clues to the argumentative structure of a philosophical "Deduction". Henrich suggests that the unity of apperception plays a role analogous to a legal factum. By contrast, I argue, first, that the question of fact in the first Critique is settled by (...) the Metaphysical Deduction, which establishes the purity of origin of the Categories, and, second, that in the second Critique, the relevant factum is the Fact of Reason, which amounts to the fact that the Moral Law is pure in origin. (shrink)

Writings on al-Shāṭibī have focused on his views on maṣlaḥah and Maqāṣid al-Sharīʿah. His approach to the interpretation of the Qurʾān and the implications of such an approach have only rarely been heeded. This study addresses this aspect of al-Shāṭibī’s work. It essentially asserts that in restructuring Islamic legal theory around the idea of Maqāṣid al-Sharīʿah, al-Shāṭibī brought jurists and Qurʾān commentators closer to one another. It further argues that his contribution went beyond the interest of jurists centred on (...) legal reasoning by holding a comprehensive hermeneutical view of the Qurʾān informed by belief in the thematic unity of its sūrahs and verses. Taking such unity as the cornerstone of a sound understanding of the Qurʾān capable of grasping its eternal values and universal principles, he developed a methodology that has inspired a few eminent contemporary Muslim scholars who have developed what has come to be known as thematic interpretation of the Qurʾān. This article discusses al-Shāṭibī’s hermeneutics of the Qurʾān by delineating his epistemic and methodological propositions. Thus, the author aims to show the existence of semantic unity and epistemic interconnectedness among different disciplines in Islamic scholarship. (shrink)

The law commonly conceived as a norm : deficiency of this conception -- On some general hints of this deficiency, and in particular those evinced by the likely origin of the current definitions of law -- The need to distinguish the distinct legal norms from the legal order considered as a whole. The logical impossibility of defining the legal order as a set of norms -- How the unity of a legal order has been sometimes (...) intuited -- How a legal order is not only a set of norms, as it also encompasses other elements -- How such ements are implicitly postulated by the common inquiry into the distinguishing characteristics of law -- Assessment, from this point of view, of the so-called objectivity of law -- The element of sanction -- The expression "the legal order" -- The essential elements of the concept of law. The law as an institution and the law as a precept -- The preceding doctrine on the concept of institution -- My concept of institution and its fundamental characteristics : 1. The objective existence of the institution; 2. Institution and social body; 3. The institution's selfness; 4. The unity of the institution -- Equivalence of the concept of institution and the concept of a legal order -- Evidence for this equivalence based on the doctrine that the law is only "form" -- Mention of some problems that need solving in the light of this equivalence -- Cases in which the original establishment of a law does not depend on norms, but on the emergence of an institution, and the impossibility of reducing the institution to the norms -- The concept of institution and the international legal order -- The institution and the legal relationship: relationships between more persons -- Relationships between persons and things : examples of some of these relationships that, considered more broadly, cab be portrayed as institutions -- The institution and the legal person -- My conception of the law with respect to certain problems relating to : 1. The legal character of state power; 2. The extension of the state personality; 3. The legal relevance of its territory and citizenry -- Critical assessment of some opinions that attach importance to the legal order only insofar as it reflect relationships between persons. Applications to: 1. The legal sanction; 2. The state territory and citizenship; 3. The state bodies; 4. The limits of the legislative function -- Some consequences of my conception with regard to the subjective aspect of the law: the legal relationship; the status of persons; rights in rem; the correlation between rights and obligations; the equal position of subjects -- Recapitulatory remarks -- The plurality of legal orders and the doctrine that reduces all law to state law -- The untenability of this doctrine from a historical and theoretical point of view -- Its untenability with respect to the existing law -- Non-state legal orders; international law -- Ecclesiastical law -- The order of entities that are considered unlawful or are ignored by the state -- Entities that are regulated by the state, but also have an order of their own which is not recognized by the state (private disciplinary orders; the internal organisation of workplaces; so-called unrecognized associations or institutions, etc.) -- Doctrines that confine the concept of a legal order to the order of communities in general and specifically to necessary communities -- The relations between different legal orders. Principles that have to be taken into account with respect to : 1. Original or derivative institutions; 2. The particular or general ends of institutions; 3. Their diverse basis; 4. Simple or complex institutions; 5. Perfect or imperfect; 6. With or without personality; 7. Independent, coordinated or subordinated -- The concept of relevance of one order to another -- The title for this relevance: a. The relation of superiority and correlative dependence between two orders; b. The relation whereby an order presupposes another; c. The relation whereby reciprocally independent orders depend a further one; d. The relevance unilaterally attributed by an order to another on which it depends; e. The relation of succession between orders -- Diverse aspects (existence, content, effectiveness) expressing the relevance an order to another one. Cases in which the existence of an order depends on another: a. Complete subordination of the former to the latter which directly establishes the former or assigns limited autonomy to it. Independence, as far as its existence is concerned, of an order in case of a less expansive subordination (some spheres of the order of the states of a federal state vis-à-vis the latter; the order of states vis-à-vis international law) and general principles; b. In the hypothesis of an order that represents the presupposition of another (state law vis-à-vis international law) -- The relevance of an order to another with respect to its content. Various cases: a. The superior order as the mediated or unmediated source of an inferior order; the superior order (international law, ecclesiastical concordats) which is not the source, and yet affects the content of inferior orders; b. the Superior order about effects the content of more orders subjected to, which however are independent from each other; c. the order of that itself that determines its own content by considering a subjected or independent order : private international law; ecclesiastical law as it refers to civil laws; the law of the state that refers to ecclesiastical law; d. an order that incorporates another -- The relevance of an order to one another with respect to its effects: external and internal effectiveness of an order. Various cases of external effectiveness: a. The relationships between orders where the one partially or totally depends on the other; b. Relationships between more orders that are independent from each other because of a unilateral disposition of one or each of them. Private international law; civil effectiveness of ecclesiastical law; c. Relationships meeting more orders in which one is of the presupposition of the other; d. Relationships between orders that succeed each other -- Diverse extension of the relevance of an order to another. Applications with regard to the problem of so-called natural obligations -- The irrelevance of an order to another; total or partial, reciprocal or unilateral -- A legal order that as such is irrelevant to another, but it is relevant in other respects (orders that are considered unlawful by the state; corporations, de facto institutions) -- Total developments of an order to another: possibility of such an irrelevance also with respect to the order of the state -- Critical assessment of the opposite doctrine. The limitations of the state order; various figures and consequences; examples of matters that are legally indifferent to the state (private disciplinary orders; particular religious orders; the orders of some non-patrimonial associations; etc.) -- The internal orders of the institutions, especially state ones, vis-à-vis the order of other institutions in which they are included. (shrink)

In order to achieve a desired effect of tax legal interpretation, its linguistic mechanisms are frequently insufficient. Elements of paralinguistic interpretation are more and more often indispensable. It applies inter alia when domestic tax law regulations must be verified in the light of the EU tax law. However, the study depict interpretative problems regarding the institution of remuneration of excess payments, which is regulated in Polish tax law. Considerations presented in this article confirm that legal interpretation of tax (...) law is a complicated process. It is important to establish correct system connection between the analyzed legal regulations and other provisions, often contained in other legal acts. Moreover, it seems necessary to refer to the purpose-oriented interpretation of the law. Only then a chance for a satisfactory final result of the provision’s legal interpretation can be guaranteed. What is more, such an effect will create an element being a part of a logically composed and arranged unity. (shrink)

Ronald Dworkin’s unity of value thesis underlies his influential moral, political, and legal thought. This essay presents an interpretation of the unity thesis designed to isolate its distinctly ethical character, elaborate Dworkin’s fundamental ethical arguments for it, and to utilize this reconstruction to correct misinterpretations that, I argue, underlie recent criticism. This criticism largely depends on construing the unity thesis within a familiar dualistic meta-ethical framework according to which Dworkin’s theory of value is classified as either (...) constructivist or realist in character. Both options, however, misapprehend the epistemological framework within which Dworkin defends value judgments in general, and therefore fail to challenge his use of that framework in defending the unity of value in particular. Correcting this oversight is essential to a proper understanding of Dworkin’s novel account of moral epistemology and of the moral and political program that his unity thesis sponsors. The paper concludes by suggesting how more profitable criticism of the unity of value might proceed. (shrink)

This book's aims are to determine the importance of legal philosophy in legal education and in addition to develop alternative methods for teaching law in general and the philosophy of law in particular. In this context, the individual essays in this volume discuss the alternatives and tendencies in the quest for an adequate model of teaching and learning jurisprudence. Common to all of them is a commitment to the necessary integration of theoretical and practical knowledge, of traditional case (...) and lecture methods with non-traditional models such as cinema, drama, and literature, and of the dominant legal perspective with alternative approaches utilizing information technologies such as computers and the internet. Effective teaching and learning must favor critical and strategic thinking, dialectical and dialogical inquiry or research, problem-solving, role-playing, and skill-developing over mere rote memorization of existing rules and standard answers. (shrink)

Countering the influential view of Critical Legal Studies that law is an incoherent mixture of conflicting political ideologies, this book forges a new paradigm for understanding the common law as being unified and systematic. Alan Brudner applies Hegel's legal and moral philosophy to fashion a comprehensive synthesis of the common law of property, contract, tort, and crime. At a time when there is a strong tendency among scholars to view the common law as essentially fragmentary, inconsistent, and contradictory, (...) Brudner suggests instead a coherence that synthesizes several interrelated dichotomies: good-centered and right-based legal paradigms, instrumental and non-instrumental conceptions of law, externalist and internalist interpretations of the common law system, and communitarian and individualist attempts to found the legal enterprise. Brudner covers genuinely new ground through an interpretation of the common law from the standpoint of Hegelian legal philosophy. His unifying notion of common law corresponds to Hegel's notion of Geist, suggesting a designation of the mutual dependence of the community and the atomistic self for their confirmation as ends. (shrink)

Jeremy Waldron tells us that “the felt need among members of a certain group for a common framework or decision or course of action on some matter, even in the face of disagreement about what the framework, decision or action should be, are the circumstances of politics.”2 Political authority and the law, Waldron insists, presuppose the circumstances of politics. We reasonably disagree not only about conceptions of the good life and value, but about justice and the common good. However, because (...) we need to act together, we cannot rest content with each going his own way. We thus have to deal with the fact that we reasonably disagree while achieving some sort of unity of action. Thus our need for political authority and the rule of law. (shrink)

This paper argues with Kant that the only justifiable basis for a legal system is an innate right to freedom, which is defined as the right to be subject only to universal law and not to the arbitrary choices of others. Since rightful interaction is possible only within public institutional frameworks, we cannot respect one another's innate right to freedom simply by interacting as virtuous individuals or as just states. In fact, only public authorities can have coercive authority, the (...) rightfulness of which is dependent upon the institutional framework constitutive of them. Of particular interest here is the requirement on states to provide public, institutional solutions to problems such as poverty and the failures of economic and financial systems. In addition, I pay special attention to why only the national public authority can establish a monopoly on coercion even though the establishment of a public authority is constitutive also of transnational rightful relations. (shrink)

Purpose. The study seeks to clarify the preconditions for moral and legal decision-making based on the identification of axiological foundations that correlate with the moral perceptions of good and evil and psychological phenomena such as emotions. Theoretical basis of the study is to apply comparative, axiological, systemic methods. This methodological approach allows us to analyze and disclose the essence of the process of moral and legal decision-making on the basis of certain axiological prerequisites and enables to substantiate the (...) connection between the axiological and psychological aspects of taking moral and legal decisions. Originality of the work is to broaden the perceptions of the processes and mechanisms for making moral and legal decisions, which are based on the axiological dimension, in particular on the system of reference individual and social values. The study shows that every necessary moral and legal decision taken by a person is futurologically balanced in the emotional sense, rationally reasoned and morally perceptible in the context of man’s beliefs about good and evil, and realized with necessity in the personal system of reference values that determines the style and manner of individual and social behaviour in the context of material and spiritual values and is an axiological foundation for making all types of moral and legal decisions. Conclusions. Moral and legal decision-making is a social process that is connected with such a social essence of a person as rationality, which gives an opportunity to act axiologically. A person makes moral and legal decisions in a complex way, based on the unity of the moral, axiological and psychological aspects of his worldview, which are grounded on the system of reference values. (shrink)

Ronald Dworkin’s new book, Justice for Hedgehogs, covers an extremely broad range of philosophical issues. However, its central thesis—the ‘unity of value thesis’—is that conflicts between moral or ethical values are merely apparent and that those values are, in fact, integrated and mutually supporting. Dworkin offers several arguments in support of this thesis, but, in this review, I focus on his attempt to illustrate the unity of value thesis by showing that the best account of certain key values (...) reveals them to be integrated and mutually supporting. I contend that this strategy is more promising than one might initially think, but that it breaks down when we consider the relationship between law and justice. For Dworkin, law is a value and his account of law entails that it can conflict with justice. Moreover, he seems precluded from developing an alternative account of law that does not give rise to such conflicts. However, while these conclusions weaken Dworkin’s case for the unity of value thesis, they do not suffice to refute it. (shrink)

Trafficking in persons is often referred to as a global problem that can only be resolved through collaborative action involving the entire global community. Since the early 2000s, the United Nations (UN) has spearheaded efforts to lead the global anti-trafficking campaign and advocate for the humane treatment of trafficked persons. This paper examines the effects of various legal documents and advocacy campaigns to argue that, for the present moment, the UN-led anti-trafficking collaboration fails on both counts—end trafficking and provide (...) protection and support to trafficked persons. It further argues that the global anti-trafficking unity is maintained at the expense of solving the actual problem: identifying someone to blame and criminalize takes precedence over resolving socio-economic conditions, which are often at the root cause of trafficking. An extreme emphasis on criminality and morality, while well aligned with states’ anti-immigration objectives and public outcries against illegal migration and prostitution, also leads to further ostracization of those in need of protection and options for reintegration. (shrink)

The early decades of the last century saw European philosophical thought becoming increasingly interested in the sociological extension of the idea of law. From the viewpoint of the sociology of law, law is formed in the process of social interactions and is not sanctioned by the state. Sergey Hessen and Georges Gurvitch base their conceptions of social law on the sociology of law in the 1920s and 1930s. They start a polemic in the pages of the journal Sovremenniye zapiski. Although (...) they differ radically in their definitions of the status of the state they concur in defining society as a set of social institutions and communities existing as instruments for expressing personal freedom. The social regulations they propose are already legal situations. Hessen and Gurvitch believe that the individual can fully exercise his/her freedom only in conditions of such legal pluralism. However, the concept of legal pluralism involves an inherent problem of preserving social unity: why is it that society does not fall into a range of autonomous social entities, each offering the individual its own legal order for actualising freedom? To solve this problem the philosophers use the concept of “the general will”. General will is an instrument of correlation between individual freedom and the development of society and culture as a whole. The object of philosophical dispute is how the general will is formed: 1) in the process of social self-organisation according to Gurvitch; 2) in the operation of the suprafunctional organisation according to Hessen. The difference in the grounding of the general will leads to a difference in the concepts of social unity: 1) sobornost according to Gurvitch and 2) solidarity according to Hessen. Analysis of the dispute between Gurvitch and Hessen brings out not only the differences in the interpretation of social unity but also the fundamental problems with the conceptions of social law. (shrink)

This paper argues with Kant that the only justifiable basis for a legal system is an innate right to freedom, which is defined as the right to be subject only to universal law and not to the arbitrary choices of others. Since rightful interaction is possible only within public institutional frameworks, we cannot respect one another’s innate right to freedom simply by interacting as virtuous individuals or as just states. In fact, only public authorities can have coercive authority, the (...) rightfulness of which is dependent upon the institutional framework constitutive of them. Of particular interest hesre is the requirement on states to provide public, institutional solutions to problems such as poverty and the failures of economic and financial systems. In addition, I pay special attention to why only the national public authority can establish a monopoly on coercion even though the establishment of a public authority is constitutive also of transnational rightful relations. (shrink)

In contemporary positive law there are legal institutions, such as conscientious objection in the context of military service or “conscience clauses” in medical law, which for the sake of respect for judgments of conscience aim at restricting legal obligations. Such restrictions are postulated to protect human freedom in general. On the basis of Thomas Aquinas’ philosophy, it shall be argued that human dignity, understood as the existential perfection of a human being based on special unity, provides a (...) foundation for imposing limitations on the scope of legal obligations in general. Human freedom plays a crucial role in understanding dignity as perfection based on the special individuality of a personal being, which in turn is based on the free choice to pursue a unique way of life. Therefore, Aquinas’ argumentation is, at its core, liberal – the perfection rather than the imperfection of a human being underlies the requirement to limit legal obligations. Dignity understood as the special unity of a person also provides the basis for limiting obligations in the case of conscientious objection; however, in that case, such limitations aim at safeguarding internal integrity rather than the individualisation of a given way of life. _This project was financed with funds from the National Science Centre allocated on the basis of the decision number DEC-2013/09/B/HS5/04232._. (shrink)

L’autore si occupa di aspetti distinti del recente fenomeno dell’uso della forza internazionale mo¬tivato dall’impellente esigenza di tutelare i diritti dell’uomo. Nel primo paragrafo tratta i pre¬supposti storico-politici del fenomeno, riferendosi in particolare alla stra¬tegia del new world order, elaborata dagli Stati Uniti nei primi anni novanta del Novecento. Nel secondo paragrafo af¬fronta gli aspetti giuridici dell’uso della forza internazionale per ragioni umanitarie, esa¬mi¬nando sia il caso in cui tale uso sia stato autorizzato del Consiglio di Sicurezza delle Nazioni Uni¬te, (...) sia il caso in cui non sia stato autorizzato. Nel terzo paragrafo si occupa del rapporto fra la prospettiva universalistica implicita nell’‘interventismo umanitario’ e l’attuale ordinamento in¬ternazionale, che ha come presupposto la sovranità degli Stati nazionali e il principio della non-ingerenza nella loro domestic jurisdiction.The author deals with distinct aspects of a recent phenomenon, i.e. the use of international force grounded on the urgency to enforce human rights. In the first section he discusses the historical and political bases of this phenomenon, by referring in particular to the strategy of ‘new world order’, worked out by the United States in the early 1990s. In the second section the author treats the legal aspects of the use of international force for humanitarian reasons, both authorised and unauthorised by the United Nations Security Council. Finally he addresses the relationship between the universalistic perspective im¬plied by ‘humanitarian interventionism’ and the present international order, based on nation states sovereignty and non-interference within their domestic jurisdiction. (shrink)

This paper argues that the concerns and methodology of the recently completed Report of the International Law Commission (ILC) over the fragmentation of international law presuppose a particular way of understanding legal language which tends to separate the understanding of rules from their factual adaptability to certain recurring social problems faced within specific institutional contexts. The paper argues that separating rules from their factual adaptability focuses the analysis on surface coherence - coherence at the level of abstract terms and (...) phrases. It is the argument of this paper that this presupposition is not warranted, and that the understanding of rules cannot be thus separated. An alternative model of the understanding of legal language is developed on the basis of the work of Bernard Jackson and Geoffrey Samuel. This is further supplemented by the approach to the study of institutional contexts in the recent work of Robert Summers and John Bell. Together, these resources can lead to the analysis of the deep coherence of the international legal order, that being one that prioritizes not the unity of that order, but its responsiveness. The ideal of responsive law is elaborated upon by reference to the work of Philip Selznick and Philippe Nonet. Finally, a different agenda for the ILC is offered on the basis of the methodology of deep coherence. The upshot is that the paper calls for a reorientation of international legal theory, away from concerns about 'the law itself' and towards an engagement with the responsiveness of legal work performed in international legal institutions. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Philosophy and Rhetoric 33.2 (2000) 182-186 [Access article in PDF] Book Review Rhetoric and Community: Studies in Unity and Fragmentation Rhetoric and Community: Studies in Unity and Fragmentation. Studies in Rhetoric/Communication. Ed. J. Michael Hogan. Series ed. Thomas W. Benson. Columbia, SC: U of South Carolina P, 1998. Pp. xxxviii + 315. $39.95. Based on papers and critical responses presented at the Fourth Biennial Public Address Conference, (...) which was held at Indiana University in 1994, this collection of fourteen essays by leading rhetoric scholars concentrates on the relationships among rhetoric, community, and fragmentation. Organized into three broad sections entitled "Race, Gender, and Community," "War and Community," and "Artistic and Scientific Community," the book contributes to ongoing conversations about the roles of language, symbolism, differences, metaphors, myths, hegemony, economic class, pluralism, and multiple consciousness in unifying the United States. A preface and a conclusion by J. Michael Hogan, who edited the collection, provides an orientation and summary for this new volume in the University of South Carolina Press series devoted to Studies in Rhetoric/Communication.The preface frames the book's contribution as a response to a belief that "a growing number of social and political commentators fear that the United States has lost all sense of 'community'--that repository of shared purpose, values, and traditions which historically has defined the American character" (xii). Hogan amplifies, "The signs of stress and fragmentation appear everywhere, not just in our national political and cultural dialogue but in all of the various communities that define our social lives--our families, our neighborhoods, our towns and cities, our professions, and our social and cultural associations" (xii). The preface situates the book in this concern about a "lost" unity that once upon a time typified the United States. But this "lost" community is a mythic representation of a past that has never existed in the United States, except possibly in the imaginations of people habituated to dominant roles. Stephen H. Browne's comments about restoration projects in general are germane: "The work of restoration has [End Page 182] never come easy for Americans, not least of all because it presumes a state that never existed and the appeal to which is almost always self-interested" (75).Describing the fourteen contributors as sharing "a common bond," Hogan asserts, "recognizing that communities are largely defined, and rendered healthy or dysfunctional, by the language they use to characterize both themselves and others, all share an abiding concern with how communities are constituted and sustained--or, in some cases, threatened and disrupted--by the words their leaders choose to characterize both themselves and others" (xv). Hogan emphasizes a question that he reiterates with slight changes in the conclusion: "Can feminist or ethnic and racial communities successfully sustain and celebrate their own identities without alienating themselves from the larger community?" (295; similarly, xxiii). But if all members of a community are responsible for unity and fragmentation, if we are unwilling to assign responsibility for fragmentation to subordinated community members, it may be necessary, consciously, to reverse the dynamics of power implicit in Hogan's question, by asking: "Can groups that have had a history of dominating others--both beyond and within the borders--sustain their own identities and still relate productively to the community?" In addition, because the English language is a communal inheritance, it may be revealing to ask, in a reversal of the book's focus on "community," how are notions of individualism sustained in the United States?Roderick P. Hart's introduction, "Community by Negation--An Agenda for Rhetorical Inquiry," focuses on a rhetoric of hate as practiced by both the political right and the political left. Hart inquires "whether it is possible to have community without hate" (xxv). This question is necessary in any serious discussion of rhetoric, fragmentation, and community; yet calculated opportunism and economic exploitation may be misnamed and obfuscated in language depicting a rhetoric of "hate." Indeed, Lu-in Wang, a legal scholar, suggests that these other motives may be more common than animus in so-called "hate crimes." Live interviews with convicted killers... (shrink)

This article begins by assessing the ways in which the life and work of Neil MacCormick exemplified a dual commitment to the local and particular—especially through his advocacy of nationalism—and to the international and the universal. It then concentrates on one of the key tensions in his work which reflected that duality, namely the tension between his longstanding endorsement of constitutional pluralism—and so of the separate integrity of different “local” constitutional orders—and his belief in some kind of unity, and (...) so community, residing in the moral and rational properties of all law. The article continues by considering a number of ways in which this tension may be resolved. It concludes, with particular reference to MacCormick's late work on ethics, that the answer may be found through the idea of a general unity of practical reason which undergirds the various special orders of practical reason by which particular legal systems are distinguished. (shrink)

The article is devoted to the analysis of the legal theories of P.I. Novgorodtsev and B.A. Kistyakovsky, based on the moral philosophy of I. Kant in comparison with the psychological theory of law of L.I. Petrazhitsky. The unity of the positions of Novgorodtsev and Kistyakovsky in focusing on the ethical aspects of law, as well as highlighting morality as the highest principle, is revealed. Attention is paid to the disclosure of neo-Kantian motives in the philosophy of law and (...) in the context of the development of the theory of natural law in Russia. The main content of the article is a consistent analysis of Novgorodtsevʼs ideas in their dynamics, compared with the neo-Kantian philosophy of law of Kistyakovsky. It is emphasized that the psychological theory of the source of Petrazhitskyʼs legal relations is in the same intention of thought with the motives of the Russian neo-Kantians, which allows them to be compared in the history of the development of the Russian theory of law. The modern scientific literature is analyzed in order to identify the problem of comparing different approaches in the history of Russian philosophy of law, in which German transcendental philosophy is one of the key foundations. The question of the independence of Russian scientists in the construction of ethical and legal doctrines is actualized, but, at the same time, a single motive is emphasized with the Kantian provision on the need to establish a general civil society on the principles of a developed system of rules and norms. (shrink)

An account of the ontological nature of collectives would be useful for several reasons. A successful theory would help to show us a route through the thicket of views known as “methodological individualism”. It would have a bearing on the plausibility of legal positivism. It would be relevant to the question whether collectives are capable of acting. The debate about the ontology of collectives is therefore important for such fields as the theory of action, social and political philosophy, the (...) philosophy of law and the philosophy of social science. I hope to contribute to the debate by proposing an account of collectives, and by showing its theoretical soundness and utility. In its essentials, my proposal is that collectives are “mereological sums” of “stages” of persons linked by a “unity relation”. The influence on this account of some theories of personal identity will perhaps be obvious. But the motivation is different, for it lies at least as much in the ability of the theory to help us deal with the issues already mentioned as in problems concerning the identity of collectives over time. I acknowledge that my proposal is not commonsensical; however, I believe that no account could be both commonsensical and adequate. I will begin by introducing some constraints on a theory of collectives. (shrink)

Unity in government -- The family in English history -- Medieval English sovereignty -- The old jury -- Becket and the law.

France and New Caledonia are currently involved in an ongoing debate surrounding the independence of the latter from the former that will lead to referenda in 2018–2022. The main stakeholders in the negotiation process are France, the Caldoche population of the island agglomeration and its Kanak inhabitants. Most critical discourse studies analyse texts as expressions of power entrenched in monologues. In this paper, however, the debate between the social actors is seen as a plurilogue. The study argues that the dominant (...) interactants propagate a rhetoric of unity and homogeneity, aiming to further marginalise the Kanak people and other minority groups in New Caledonian society by rendering them invisible. It further argues that the French political power aims to persuade the other groups to accept the reality of a common destiny as a given truth. The paper combines Systemic Functional Linguistics and Pragma-dialectics, and incorporates postcolonial and poststructuralist perspectives into a critical study of discourse samples, taken from a larger corpus of French data, across various genres and registers. The analysis reveals that the French rhetoric of unity is built upon Republican principles inherent to neo-colonialist ideology. It also shows that the French rhetoric is being reproduced by local settler interactants, based on values that pertain to Caldoche nationalist ideology. Both French and Caldoche ideologies are in discord with Kanak socialist ideology. By exposing the existing power inequalities the study does not only contribute to defending the Kanak minority discourse, but also emphasises the rights for recognition and self-determination of the Kanak indigenous people of New Caledonia. (shrink)

This article examines the different approaches to the relation between law, state and economy in the works of Hans Kelsen, Carl Schmitt and Evgeny Pashukanis. It begins with Kelsen’s depiction of law as a dynamic and ‘self-regulating’ system of norms, founded on his rejection of ‘dualist’ separations of state and law, before turning to Schmitt and Pashukanis’s respective critiques. For all their differences, both agree Kelsen ignores the historical basis of the law – for Schmitt, the sovereign power of ‘the (...) political’, for Pashukanis, the social relations of commodity exchange. The article responds to these criticisms in a most un-Kelsenian manner, drawing upon historical sociological literature on early modern state formation to cast doubt on both Schmitt and Pashukanis’s historical accounts. It argues that the forms of political power and commodity exchange upon which Schmitt and Pashukanis’s theories rely were historically specific possibilities opened up by the same process of generalisation and depersonalisation of power relations that allowed for an autonomous ‘public’ system of legal norms. Thus, rather than the fixed causal ground for the development of modern law, ‘the political’ and exchange between equals exist in a relation of ‘difference-in-unity’ with the law. The article concludes that Kelsen’s notion of the Grundnorm is best explained as an attempt to capture the new possibilities and responsibilities opened up a normative system whose ultimate justification now lies only within itself. (shrink)

In Dimensions of Private Law, Professor Stephen Waddams describes the obstacles that an adequate classification of private law must overcome. The purpose of this essay is to offer a theoretical account of legal classification that explains how these obstacles can be overcome and what the resulting classification of private law might look like. I begin with the catalogue of obstacles that Waddams presents and argue that, because they are rooted in misconceptions about the classificatory project, they pose no threat (...) to an adequate conception of legal classification. In search of such a conception, I consider how three great legal theorists – Aristotle, Kant, and Hegel – answer three fundamental classificatory questions about private law. First, what is the unitythat underlies the seemingly chaotic array of legal instances? Second, what is the principle of differentiationthat applies to this unity? Third, how are legalinstancessubsumed under this differentiated unity? The focus of this essay is the enduring significance of Kant’s conception of legal classification, which provides an alternative to Waddams’ conception and offers a set of coherent answers to the fundamental classificatory questions. In contrast, both Aristotle and Hegel respond to the fundamental classificatory questions by providing a conception of the unity of private law that fails to cohere with their ensuing accounts of its differentiation. (shrink)

It is still underestimated to what extent in his main works Hugo Grotius not only sketched and developed a system of private, state and international law; but also outlined a general philosophy or theory of law. By asking questions concerning the law of property, the law of prize and booty, the law of peace and war or the legal status of sovereignty he did not only refer to the 'right side', i.e. to actions that can be labelled as rightful (...) and legal. He also dealt with many aspects of what is not right and unlawful, not limiting himself to just give mere examples of crossing the border to the 'non right side'. It was a part of Grotius's methodological approach to systematically reflect on the law from the perspective of its violations. One example of such a violation is the act of piracy and the figure of the pirate. To outline this is the aim of the following article. By showing that the pirate and his 'legal twin', the privateer, were belong together as two sides of the same coin, they come to symbolise in an exemplary way the differentiation between 'right' and 'non right' as the unity of law in the legal philosophy of Grotius. (shrink)

This article presents the novel view that ‘inclusion into seclusion’ and ‘public disclosure of embarrassing facts’ (‘misuse of private information’ (“MOPI”) in the UK), which both the academic commentary and US case law treat as two separate legal actions, occupy the same conceptual space. This claim has important practical ramifications. No further development of the law is required to realise an actionable intrusion tort as part of the UK’s MOPI tort. The argument is defended in doctrinal and theoretical terms, (...) and by reference to both UK and US law. It is presented in three forms: first, in negative terms, that the orthodox distinction between the two claims (informational privacy and intrusion) is unsustainable; secondly, in positive terms, that both guard against the same wrong (unwarranted privacy-invasion) and the same harm (mental distress), in a way that is distinctive from other privacy actions and legal claims based upon the autonomy value; finally, in pragmatic terms, that MOPI’s mature jurisprudence is sufficiently flexible and dynamic to recognise intrusion-only claims using its existing legal framework. (shrink)

This volume examines the problems of legal and linguistic diversity in the EU legal system. In a union of 27 member states, with 23 different languages, how can the coherence of EU law be guaranteed? Is there a common understanding between lawyers from different national backgrounds as to the meaning and domestic application of EU law? The volume addresses these central questions from a range of theoretical and practical perspectives.

This paper explores and defends an institutional metaphysics for the Trinity as providing us with an inherently interpersonal reality, and provides general and specific methodological arguments in that direction in the first section. The actual argumentation is then first of all directed against Augustine’s rejection of the family as a suitable analogy for the Trinity. It is instead argued that the family does in fact offer an interesting and suitable analogy. Next, several more general and historic precursors to such an (...) institutional analogy are explored and fleshed out, relying on the legal and economic meaning of the term ‘substance’ as an estate, such as the shared inheritance between a father and a son. The main section further develops the outlines and main features of such an institutional metaphysics, relying on both analogies to result in three persons in one numerically identical substance. The final section returns to the methodological issue but now in an explicitly Marian key, culminating in the Holy Family as a key exemplar for the family analogy. (shrink)

The unity of the group mind is a psychoplastic unity. In the group mind subjects are integrated through an object and not objects through a subject. It follows, among many much more important consequences, that a scientific analysis and arrangement of the law relating to corporations should proceed in the manner practically indicated in the Law of Limited Companies, Corporations Sole, Trusts, Bankruptcy, Local Government, and so forth, that is to say, by the estatificatian of interests and not (...) by the pretended incorporation of people. (shrink)

Whether Kant’s late legal theory and his theory of race are contradictory in their account of colonialism has been a much-debated question that is also of highest importance for the evaluation of the Enlightenment’s contribution to Europe’s colonial expansion and the dispossession and enslavement of native and black peoples. This article discusses the problem by introducing the discourse on barbarism. This neglected discourse is the original and traditional European colonial vocabulary and served the justification of colonialism from ancient Greece (...) throughout the Renaissance to the eighteenth century. Kant’s explicit rejection of this discourse and its prejudices reveals his early critical stance toward colonial judgements of native peoples even before he developed his legal theory. This development of his critical position can be traced in his writings on race: although he makes racist statements in these texts, his theory of race is not meant to ground moral judgements on ‘races’ or a racial hierarchy but to defend the unity of mankind under the given empirical reality of colonial hierarchies. (shrink)

Synodical unity in the Dutch Reformed Church in 1911 – an attempt that failed. In 1862 the Supreme Court of the Cape Colony terminated the synodical unity of the Dutch Reformed Church in South Africa. Delegates of congregations outside the Colony could no longer represent them in the Cape or Mother Synod. The court used Ordonnance 7 of 1843 of the Colony. In 1907 the newly founded Federal Council of Dutch Reformed Churches decided to lead an effort in (...) the Church to replace this federal bond with a closer synodical bond. The Council was a combined body of the four Dutch Reformed Churches of respectively the Transvaal, Free State, Natal and Cape. However, to achieve this, they needed the help of the state authorities of the Union of South Africa to scrap all legal obstacles in the way of the Dutch Reformed Church. After consultations with the authorities, the Church was asked to formulate a concept act to replace these hindrances. The act was accepted by Parliament, but the Church could not get the required three quarters of a majority in three quarters of its consistories for the bill to be accepted. Thus, the effort for a new synodical unity failed. Contribution: This article adds to the history of the synodical structure in the Dutch Reformed Church. In doing so it concentrates on the failed attempt in this church in 1911 to form an all-inclusive – as far as congregations are concerned – synodical bond with attention to the required church political principles behind such a structure. This is also relevant to the present efforts for unity in the family of Dutch Reformed Churches, as well as other reformed churches in Southern Africa. The approach is a reformed perspective on the relationship between state and church. (shrink)