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  1.  13
    The Concept of Legal Competence: An Essay in Conceptual Analysis.Torben Spaak - 1994 - Dartmouth Pub. Co..
    Explains the concept of legal competence (or power). This book then discusses the analysis and definition of legal concepts in general; the relation between the concept of competence and (in)validity; what it means to exercise competence; different types of competence; and competence norms.
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  2.  23
    Legal Positivism, Conventionalism, and the Normativity of Law.Torben Spaak - 2018 - Jurisprudence 9 (2):319-344.
    ABSTRACTThe aim of this article is to see whether we can account for the normativity of law within the framework of legal positivism and whether the idea of a social convention could be of help in this endeavour. I argue, inter alia, that we should distinguish between the problem of accounting for the normativity of law, conceived as a necessary property of law, and the problem of accounting for the use of normative legal language on the part of legal actors; (...)
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  3.  16
    Alf Ross on the Concept of a Legal Right.Torben Spaak - 2014 - Ratio Juris 27 (4):461-476.
    In this article, I discuss Alf Ross's claim that the concept of a legal right is best understood as a technical tool of presentation, which ties together a disjunction of operative facts and a conjunction of legal consequences, and that rights statements render the content of a number of legal norms in a convenient manner. I argue that while Ross's analysis is appealing, it is problematic in at least three respects. I also argue, however, that despite these difficulties Ross's analysis (...)
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  4.  70
    Legal Positivism, Law's Normativity, and the Normative Force of Legal Justification.Torben Spaak - 2003 - Ratio Juris 16 (4):469-485.
    In this article, I distinguish between a moral and a strictly legal conception of legal normativity, and argue that legal positivists can account for law's normativity in the strictly legal but not in the moral sense, while pointing out that normativity in the former sense is of little interest, at least to lawyers. I add, however, that while the moral conception of law's normativity is to be preferred to the strictly legal conception from the rather narrow viewpoint of the study (...)
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  5.  65
    Karl Olivecrona's Legal Philosophy. A Critical Appraisal.Torben Spaak - 2011 - Ratio Juris 24 (2):156-193.
    I argue in this article (i) that Karl Olivecrona's legal philosophy, especially the critique of the view that law has binding force, the analysis of the concept and function of a legal rule, and the idea that law is a matter of organized force, is a significant contribution to twentieth century legal philosophy. I also argue (ii) that Olivecrona fails to substantiate some of his most important empirical claims, and (iii) that the distinction espoused by Olivecrona between the truth and (...)
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  6.  8
    The Canberra Plan and the Nature of Law.Torben Spaak - 2016 - In Pawel Banas, Adam Dyrda & Tomasz Gizbert-Studnicki (eds.), Metaphilosophy of Law.
    In this article, I shall consider a method for conceptual analysis which has been called the Canberra Plan and which might perhaps be conceived as an alternative approach to conceptual analysis in the classical sense. The Canberra Plan is not, however, aimed primarily at the elucidation of the relevant concept, but at the metaphysical question of identifying the descriptive property that corresponds to the concept.[1] The idea of the Canberra Plan is, more specifically, to clarify the import of the concept (...)
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  7.  50
    Meta-Ethics and Legal Theory: The Case of Gustav Radbruch. [REVIEW]Torben Spaak - 2009 - Law and Philosophy 28 (3):261 - 290.
  8.  33
    Norms That Confer Competence.Torben Spaak - 2003 - Ratio Juris 16 (1):89-104.
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  9.  13
    Realism About the Nature of Law.Torben Spaak - 2017 - Ratio Juris 30 (1):75-104.
    Legal realism comes in two main versions, namely American legal realism and Scandinavian legal realism. In this article, I shall be concerned with the Scandinavian realists, who were naturalists and non-cognitivists, and who maintained that conceptual analysis is a central task of legal philosophers, and that such analysis must proceed in a naturalist, anti-metaphysical spirit. Specifically, I want to consider the commitment to ontological naturalism and non-cognitivism on the part of the Scandinavians and its implications for their view of the (...)
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  10.  4
    Kelsen’s Metaethics.Torben Spaak - 2022 - Ratio Juris 35 (2):158-190.
    Ratio Juris, Volume 35, Issue 2, Page 158-190, June 2022.
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  11.  26
    Realism About the Nature of Law.Torben Spaak - 2016 - Ratio Juris 29 (4).
    Legal realism comes in two main versions, namely American legal realism and Scandinavian legal realism. In this article, I shall be concerned with the Scandinavian realists, who were naturalists and non-cognitivists, and who maintained that conceptual analysis is a central task of legal philosophers, and that such analysis must proceed in a naturalist, anti-metaphysical spirit. Specifically, I want to consider the commitment to ontological naturalism and non-cognitivism on the part of the Scandinavians and its implications for their view of the (...)
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  12.  78
    Naturalizing Jurisprudence – by Brian Leiter.Torben Spaak - 2008 - Theoria 74 (4):352-362.
  13.  18
    Schauer's Anti‐Essentialism.Torben Spaak - 2016 - Ratio Juris 29 (2):182-214.
    In his new book, The Force of Law, Frederick Schauer maintains that law has no necessary properties, and that therefore jurisprudents should not assume that an inquiry into the nature of law has to be a search for such properties. I argue, however, that Schauer's attempt to show that legal anti-essentialism is a defensible position fails, because his one main argument is either irrelevant or else incomplete, depending on how one understands it, and because the other main argument is false.
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  14.  47
    Karl Olivecrona on Judicial Law-Making.Torben Spaak - 2009 - Ratio Juris 22 (4):483-498.
    The Scandinavian Realist Karl Olivecrona did not pay much attention to questions of legal reasoning in his many works. He did, however, argue that courts necessarily create law when deciding a case. The reason, he explained, is that judges must evaluate issues of fact or law in order to decide a case, and that evaluations are not objective. Olivecrona's line of argument is problematic, however. The problem is that Olivecrona uses the term "evaluation" in a sense that is broad enough (...)
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  15. Review. [REVIEW]Torben Spaak - 2008 - Theoria 74 (4):352-362.
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  16.  37
    Book Review: Brian Leiter, Naturalizing Jurisprudence. [REVIEW]Torben Spaak - 2008 - Theoria 74 (4):352-62.
  17.  12
    Animal Law : Human Duties or Animal Rights?Torben Spaak - 2021 - In Lydia Lundstedt (ed.), Animal Law and Animal Rights.
    In my view, the moral case for giving animals legal protection is strong. This is so whether or not we think of animals as having moral rights, such as a right to be cared for, or at least a right not to be harmed, because even if animals do not have moral rights, humans have moral duties toward animals, such as a general duty not to harm animals, say, by performing experiments on them, or raising them for food, or having (...)
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  18.  1
    „Law's Normativity and Legal Justification “.Torben Spaak - 2003 - Ratio Juris 16 (4):469-485.
  19.  5
    Legal Philosophy and the Study of Legal Reasoning.Torben Spaak - 2021 - Belgrade Law Review 69 (4).
    In this short paper, I argue that legal philosophers ought to focus more than they have done so far on problems of legal reasoning. Not only is this a field with many philosophically interesting questions to consider, but it is also, in my estimation, the field in which legal philosophers can contribute the most to both the study and the practice of law. For even though reasoning and interpretation are at the center of what legal practitioners and legal scholars do, (...)
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  20.  21
    Plans, Conventions, and Legal Normativity: A Review of Stefano Bertea and George Pavlakos (Eds), New Essays on the Normativity of Law. [REVIEW]Torben Spaak - 2012 - Jurisprudence 3 (2):509-521.
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  21.  53
    Relativism in Legal Thinking: Stanley Fish and the Concept of an Interpretative Community.Torben Spaak - 2008 - Ratio Juris 21 (1):157-171.
    Relativistic theories and arguments are fairly common in legal thinking. A case in point is Stanley Fish's theory of interpretation, which applies to statutes and constitutions as well as to novels and poems. Fish holds, inter alia, (i) that an interpretation of a statute, a poem, or some other text can be true or valid only in light of the interpretive strategies that define an interpretive community, and (ii) that no set of interpretive strategies (and therefore no interpretation) is truer (...)
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  22.  2
    The Cambridge Companion to Legal Positivism.Torben Spaak (ed.) - 2021 - Cambridge University Press.
    Legal positivism is one of the fundamental theories of jurisprudence studied in law and related fields around the world. This volume addresses how legal positivism is perceived and makes the case for why it is relevant for contemporary legal theory. The Cambridge Companion to Legal Positivism offers thirty-three chapters from leading scholars that provide a comprehensive commentary on the fundamental ideas of legal positivism, its history and major theorists, its connection to normativity and values, its current development and influence, as (...)
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  23.  64
    Guidance and Constraint: The Action-Guiding Capacity of Neil MacCormick’s Theory of Legal Reasoning. [REVIEW]Torben Spaak - 2007 - Law and Philosophy 26 (4):343-376.
    Offers analysis of MacCormick's positivistic account of legal reasoning, partially in response to Dworkin's claim that positivism is inadequate as a theory of law because it cannot account for the nature of legal reasoning. Having analyzed MacCormick's theory and having applied it to some cases, we are now ready to evaluate it. My conclusion is that inmany cases MacCormick's theory can indeed give the judge the kind of concrete guidance he needs when with a hard case. The reason why MacCormick's (...)
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  24.  9
    Kelsen on Monism and Dualism.Torben Spaak - 2013 - In Marko Novakovic (ed.), Basic Concepts of Public International Law: Monism and Dualism.
    Kelsen defends monism, that is, the view that international law and the various state legal systems taken together constitute a unified normative system, and the primacy of international law over state law within the monistic framework. He argues in support of the -claim that only monism is compatible with the epistemological postulate, according to which cognition requires the unity of the object of cognition, that the norm conflicts that are said by the critics of monism to undermine monism are harmless (...)
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  25.  7
    Robert Alexy and the Dual Nature of Law.Torben Spaak - 2020 - Ratio Juris 33 (2):150-168.
    Robert Alexy maintains that law has a dual nature, in the sense that it necessarily has both a real and an ideal dimension, and that this feature is “the single most essential feature of law”. He explains that the elements of authoritative issuance and social efficacy constitute the real dimension of law, whereas the claim to moral correctness makes up the ideal dimension. And, he points out, the dualnature thesis implies nonpositivism. I argue that Alexy’s correctness thesis is defensible, and (...)
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  26.  14
    Book Reviews MacCormick, Neil . Practical Reason in Law and Morality . Oxford: Oxford University Press, 2008. Pp. 224. $90.00 (Cloth). [REVIEW]Torben Spaak - 2009 - Ethics 120 (1):192-196.
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  27.  25
    Review of Natural Law and Modern Moral Philosophy (Ellen Frankel Paul Et Al Eds.). [REVIEW]Torben Spaak - forthcoming - Theoria.
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  28.  31
    Philip Soper, the Ethics of Deference Cambridge Studies in Philosophy and Law, Cambridge University Press, 2002, 189 Pages, Isbn 0-521-81047-. [REVIEW]Torben Spaak - 2006 - Theoria 72 (2):138-147.
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  29.  6
    Karl Olivecrona on Judicial Law‐Making.Torben Spaak - 2009 - Ratio Juris 22 (4):483-498.
    The Scandinavian Realist Karl Olivecrona did not pay much attention to questions of legal reasoning in his many works. He did, however, argue that courts necessarily create law when deciding a case. The reason, he explained, is that judges must evaluate issues of fact or law in order to decide a case, and that evaluations are not objective. Olivecrona's line of argument is problematic, however. The problem is that Olivecrona uses the term “evaluation” in a sense that is broad enough (...)
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  30.  9
    Neil MacCormick, Practical Reason in Law and Morality.Torben Spaak - 2009 - Ethics 120 (1):192-197.
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  31. Review of Rex Martin, a System of Rights. [REVIEW]Torben Spaak - 1995 - Theoria 61 (1):80-94.
     
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