Traditionally legal theorists, whenever engaged in controversy, have agreed on one point: legal norms are par excellence rules which impose obligations. The author examines this assumption, which from another perspective (that of constitutional law, for instance) appears less obvious. In fact, constitutional rules are commoniy empowering norms, norms which do not create duties but powers. To this objection many theorists would reply that empowering rules are incomplete and that they are to be understood as parts of duty‐creating rules. A different (...) position from this traditional stance is that defended in Kelsen's later writings, according to which the fundamental type of norm is the empowering norm. The author discusses Kelsen's three theories on the “ideal form” or structure of the legal norm, with special attention to the third of these, the empowerment theory. (shrink)

First, the author examines the traditional doctrine of imputation. A look at the traditional doctrine is useful for establishing a point of departure in comparing Kelsen's doctrines of central and peripheral imputation. Second, the author turns to central imputation. Here Kelsen's doctrine follows the traditional doctrine in attributing liability or responsibility to the subject. Kelsen's legal subject, however, has been depersonalized and thus requires radical qualification. Third, the author takes up peripheral imputation, which is the main focus of the paper. (...) It is argued that with respect to the basic form of the law, exhibited by the linking of legal condition with legal consequence, peripheral imputation counts as an austere doctrine, shorn as it is of all references to legal personality or the legal subject. If Kelsen's reconstructed legal norms are empowerments, then the austere doctrine of peripheral imputation captures the rudiments of their form, exactly what would be expected if peripheral imputation does indeed serve as the category of legal cognition. Finally, the author develops the puzzle surrounding the legal “ought” in this context. Although Kelsen talks at one point as though the legal “ought” were the peculiarly legal category, the author submits that this is not the best reading of Kelsen's texts. (shrink)

ABSTRACTAs the title suggests, I take up three motifs in the article. Legal science, on a narrower reading, examines the law qua object of legal cognition. Substituting legal cognition for traditio...

Following Einstein's prediction of the gravitational bending of light, and in the course of experimental work aimed at its verification, only sporadic and at times misleading references have been made to Johann Georg von Soldner. In a paper published in 1804, Soldner derived the gravitational bending of light on the classical Newtonian basis and calculated its value around the sun with remarkable accuracy. Soldner's paper, inaccessible even in German, is now presented in English translation and put in the perspective of (...) Soldner's life and the science of his day and ours. (shrink)

Hans Kelsen's legal philosophy and legal theory is regarded by many in the field as the most influential theory in this century. This volume makes available some of the best work extant on Kelsens' theory, including papers newly translated into English. It covers topics such as competing philosophical positons on the nature of law, legal validity, legal powers, and the unity of municipal and international law, as well as shedding light on Kelsen's intellectual milieu and his intellectual debts.

In lieu of an abstract, here is a brief excerpt of the content:THOMAS AND THE UNIVERSE STANLEY L. JAKI Seton Ha,ll Uni1;ersity South Orange, New Jersey FEW SUBJECTS MAY appear so discouragingly vast as Thoma's and the Universe. Few have pmduced a work vaster, let alone deeper, than did Thomrus. As to the universe, its Viastness as well as its depth ·are succinctly stated in Newman's Idea of a University:" There is but one thought greater than that of the (...) universe, and that is the thought of its Maker." 1 There is in aiddition the vastness of the history of the notion of the universe and the.large number of Thomas' interpreters, not all of them immune to prolixity. At any rate, Thomas' best known ~0th-century interpreters offer, as will be seen shortly, at most a brief chapter or a subsection of it on Thomas and the universe with very little on the universe as such. A possible reason for this is that in rthe vast writings of Thomas there is no chapter or question on the universe as suoh. By as such I mean the very core of the notion of the universe, or its 'being the totality of consistently interacting things and their very unity. Thomas, as will 1be seen later, is not iat all silent on this point. Brut if one tries to focate his relevant dicta hy looking through the detailed fables of contents in, say, the Para:na edition of his works, one is not given much guidance. No different is the cruse when one looks through the subject indices. Entries under "universum" are almost as scarce as hen"s teeth. As to entries under " mundus," they.are of no great help on the worild or universe as such. Authors who let their publishers undertake the compilation of the subject index of their books will p11obably agree that the 1J. H. Newman, The Idea, of a, University (London: Longmans, Green & Co., 1888), p. 462. 545 546 STANLEY L. J AKI result is very unsatisfactory in most cases. Few reaiders can really sense the nuances of an author's real concerns, especially if, like Thomas, he has many important concerns. There is in addition the effect of the climate of thought. Under ordinary circumstances one does not pay attention to the air one hreathes in, and much less writes about it extensively, though one still can make incisive though brief references to it. In the intellectual atmosphere surrounding Thomas, the reality o[ the universe :as such 'Was taken to he a most obvious fact. There were debates whether the universe was eternal or temporal; whether it was uncreated or created out of nothing or out of some prime matter; whether any creature could he given a creative power; whether the unive11se was governed providentially; whether it was properly ordered; whether anything occurred in it :by chance or thy accident; whether it was absolutely or relatively the best; whether it could have been otherwise; whether it was necessarily spherical; whether it could move or not-but nobody.felt the need to discuss ·at length whether there was a universe,.that is, a totality of consistently intemcting things 1aH of which verged toward unity. Democritus' claim aibout a large number of universes was, of course, known, but just a;s well known was the illogicality of it. Either those universes interructed with one,another, and in that oase they clearly formed one :single universe, or they were unknowaible to one another in the 'absence of such interaction. 'lihe arguments Aristotle offered 2 on behalf of the unicity of the universe were widely adhered to even in the latter half of the 17th century. The idea of the plurality of worlds that came then into vogue l1ested largely on taking planets and stars for worlds, though hardly ever with the intent of destroying the notion of the universe as a totality. The spontaneous acceptance of a real universe remained part and parcel of Western consciousness until Kant's Critique of Pure Reason began to make a real impact through the rise of Neo-Kantiani:sm fil'om the 1870s on. Reaction to that impact 2 Aristotle, On the Heavens, Bk I, ch. 8-9. THOMAS AND THE... (shrink)

This new collection of writings from America's foremost authority on the relationship between science and religion, Templeton Prize-winner Stanley L. Jaki, is an incisive overview of the intersection of science with the most fundamental areas of human culture.

Hans Kelsen’s purity thesis is the basic methodological principle of the Pure Theory of Law. Indeed, it is no exaggeration to say that virtually everything that is peculiar to Kelsen’s legal theory stems from the purity thesis. This includes Kelsen’s normativism or non‐naturalism and his polemic against various dualisms in legal science. I set out Kelsen’s position on these issues after looking at the nomenclature of purity in his writings as well as the philosophical and contextual sources of purity as (...) he understands them. (shrink)

"In The Savior of Science Jaki illumines one of the best kept secrets of science history - the role theology has historically played in fruitful scientific development." "The volume begins by portraying a most-neglected yet all-important facet of cultural history - the invariable stillbirths of science in great ancient cultures, including Greece, China, India, and the early Muslim empire. This overview provides the background for the first major thesis of the book: belief in Christ, the only begotten Son of God (...) - a belief absent in all these cultures - secured for science its only viable birth in a period beginning in the High Middle Ages." "In the second part of the book Jaki continues his critique of science history with a number of meticulously argued theses about Christian monotheism. These include the view that Christian monotheism provides intellectual safeguards for the cosmological argument (an argument powerfully supported by modern scientific cosmology), that Christian monotheism vindicates the sense of purpose destroyed by materialist theories of evolution, and that Christian monotheism secures firm ethical guidelines against fearful abuses of scientific know-how."--BOOK JACKET.Title Summary field provided by Blackwell North America, Inc. All Rights Reserved. (shrink)

In his introductory section, Christian Dahlman points to various “absurdities” or “self-contradictions” generated by the basic norm. I adduce arguments showing that these “absurdities” or “self-contradictions” do not arise - not, at any rate, from Dahlman’s premises. In his central section, Dahlman sets out three purported problems and claims to resolve them by appeal to one or another of the “three basic norms” that he adumbrates. None of these problems is resolved by Dahlman. Specifically, I adduce arguments showing that the (...) first problem is a straw man of Dahlman’s own making, his resolution of the second problem turns on his confusion of the fictitious basic norm in Kelsen’s post-1960 period with the basic norm of ostensibly normative import in Kelsen’s classical or neo-Kantian phase, and, finally, Dahlman’s resolution of the third problem turns on his confusion of Kelsen’s basic norm with H.L.A. Hart’s rule of recognition. I close with remarks on Kelsen’s own conception of the juridico-theoretical problems he faced. (shrink)

Whereas fundamental norms in the juridico‐philosophical tradition serve to impose constraints, Kelsen's fundamental norm—or basic norm —purports to establish the normativist character of the law. But how is the basic norm itself established? Kelsen himself rules out the appeals that are familiar from the tradition—the appeal to fact, and to morality. What remains is a Kantian argument. I introduce and briefly evaluate the Kantian and neo‐Kantian positions, as applied to Kelsen's theory. The distinction between the two positions, I argue, is (...) reflected in an ambiguity in the use of the term “regressive.”. (shrink)

Despite far‐reaching historical and political differences, and despite legal systems that reflect altogether different traditions, the United States and Austria manifest striking similarities where some aspects of their respective development of constitutional review are concerned. For example, on the constitutional review of federalist issues (competing claims of federal and state law), the review power was there from the beginning in both countries. And both countries developed a power of constitutional review reaching to the enactments of the federal legislature. In a (...) brief sketch of aspects of the early development of constitutional review in both countries, the author looks, in particular, to the kinds of arguments made on behalf of constitutional review in the American and Austrian legal systems. (shrink)

Book reviewed:Adolf Julius Merkl, Gesammelte Schriften.

Authority qua empowerment is theweak reading of authority in Hans Kelsen's writings.On the one hand, this reading appears to beunresponsive to the problem of authority as we know itfrom the tradition. On the other hand, it squares withlegal positivism. Is Kelsen a legal positivist?Not without qualification. For he defends anormativity thesis along with the separation thesis,and it is at any rate arguable that the normativitythesis mandates a stronger reading of authority thanthat modelled on empowerment. I offer, in the paper,a prima (...) facie case on behalf of a stronger reading ofauthority in Kelsen. I go on to argue, however, thatthe textual evidence weighs heavily in favour of theweak reading. Both nomostatics and nomodynamics arepervasive points of view in the Pure Theory of Law,and both reflect species of empowerment as theendpoint of Kelsen's reconstructions. (shrink)

The separability thesis claims that the concept of law can be explicated independently of morality, the normativity thesis, that it can be explicated independently of fact. Continental normativism, prominent above all in the work of Hans Kelsen, may be characterized in terms of the coupling of these theses. Like Kelsen, H. L. A. Hart is a proponent of the separability thesis. And–a leitmotiv–both theorists reject reductive legal positivism. They do not, however, reject it for the same reasons. Kelsen's reason, in (...) a word, is the normativity thesis. Hart, however, grounds his theory in social fact. In place of the reductive thesis of the legal positivist tradition, and in sharp contrast to Kelsen's normativity thesis, Hart defends a non‐reductive version of what the author terms the facticity thesis. (shrink)