This paper explores the possibility that Hobbesian jurisprudence is best understood as a ‘third way’ in legal theory, irreducible to classical natural law or legal positivism. I sketch two potential ‘third theories’ of law -- legal pragmatism and legal dualism -- and argue that, when considered in its broadest sense, Leviathan is best viewed as an example of legal pragmatism. I consider whether this legal pragmatist interpretation can be sustained in the examination of (...) Leviathan’s treatment of civil law, and argue that the pragmatic interpretation can only be successful if we can resolve two textual issues in that chapter. First, while Hobbes argues that law entails the existence of public (sharable) reasons, he does not adequately defend the view that the sovereign is the unique authority over such reasons in all cases, especially as far as they concern known collective emergencies. Second, Hobbes both affirms and denies that a sovereign can fail to do justice, which is paradoxical. Both problems are best resolved by legal pragmatism, though the second problem resists a fully satisfying resolution. The upshot is that, although Leviathan ought to be regarded as an episode of legal pragmatism, there are trade-offs on every reading. (shrink)

There is no issue more central to the abortion debate than the controversial issue of whether the fetus is a moral person. Abortion-rights opponents almost universally claim that abortion is murder and should be legally prohibited because the fetus is a moral person at the moment of conception. Abortion-rights proponents almost universally deny the crucial assumption that the fetus is a person; on their view, whatever moral disvalue abortion involves does not rise to the level of murder and hence does (...) not rise to the level of something that should be legally prohibited.In this essay, I argue that, under dualist assumptions about the nature of mind, the fetus is not a person until brain activity has begun.i First, I argue it is a necessary condition for a thing to be a moral person that it is a self. Second, I argue it is a necessary condition for a fetus to be a self, under dualist assumptions, that there has been some electrical activity in the brain. I conclude that a dualist can take the position that abortion ought to be legally permitted at least until the beginning of brain activity in the fetus. (shrink)

The Qumran community of Essenes belongs to the religious sects of Palestine II. BC - 1st century BC not. It arose in the line of Judaism and was closely connected with the Jewish religion. This is evidenced by the spiritual library of the community and the strict observance of the law of Moses by its members. In order to get closer to the understanding of nature and the essence of spirituality, one should not only take into account the complete (...) class='Hi'>legal features of its similarity to official or normative Judaism, but to note the differences that existed between them. These differences were determined in the social and religious isolation of the Qumran community from the Jewish community and were reflected in a desert, similar to the monastic way of life, in rejection of participation in the temple cult, a specific ritual of washing, different from the established burial ceremony, in the use of a special solar calendar. All this testifies at the same time to the specificity of the ideological views of the members of the Qumran Brotherhood. It is difficult to say whether the theological system of the Qur'an outlook has survived to date, since its essential elements were transmitted orally and not recorded. (shrink)

The article analyses the key issues of the legal status of the sole managing body from the perspective of the valid legal regulation, the established case-law and doctrine. The first part of the article analyses the dualism of the manager’s legal status from the perspective of civil law and labour law. The analysis of the latest case-law presented herein shows that the rule of “internal” and “external” relations between the manager and the company formulated in the (...) case-law is applied differently, and the criterion of distinguishing the manager’s as the subject of the labour law and that of the civil law statuses still remains unclear. The authors of the article are of the view that due to insufficient legal regulation in force rules established by the case-law to regulate the manager’s legal status cannot ensure the required legal certainty. Thus, the reform of the manager’s legal regulation is essential. The second part of the article strives to answer the question what legal regulation models exist and what are the main criteria of quality legal regulation. The comparative analysis of the legal status regulation of the sole managing body allows to determine the main available regulation models of the manager’s legal status and to distinguish their advantages and disadvantages. The authors of the article believe that it is necessary to take regard to other states’ practices regulating the relations at issue, however, while creating such legal regulation, the evaluation of economic, cultural and social peculiarities of Lithuania is also required. In search for the most appropriate model of the manager’s legal status, attention should be drawn to the fact that in some aspects the labour law regime is too restrictive (e.g., shareholders cannot recall the manager, who is on maternal leave, and the manager at interim does not have full authority) and uncoordinated with the doctrine of the companies’ law. Moreover, quite a few questions directly related to the issues of the manager’s authority do not fall or only partially fall into the scope of the labour law. On the other hand, the problem of the manager’s legal status involves a broader scope of points of the companies’ law than the dualism of the manager’s status, and a part of these points has already been regulated by the Law on Companies (the agreement conclusion, termination, removal from the register of legal persons, terms of notice). In regard to this, a question can be raised if it not be better to regulate the issues of the manager’s legal status by the provisions of the Law on Companies and not of the Labour Code. It is proposed to create a specific legal regulation of the companies’ law, which could meet the needs of business and match up to the doctrine of the companies’ law, which is already being applied. (shrink)

My article investigates the paradoxical dualism in Kelsen’s Pure Theory of Law, in which exists on the one hand a strict distinction and on the other hand a necessary relation between Is and Ought. I shall further try to answer the question whether Kelsen’s pure theory tacitly assumes in the conditions for validity of the positive legal order a basic value and underlying condition, namely, that of ‘social peace’. In order to answer that question, I will first sketch (...) why Kelsen actually differentiates Is and Ought and conceives of a relation between both categories. Then I will examine if and in what way the conditio tacita of social peace is implied in the conditions for legal validity. The concluding section will suggest what this implication possibly means for the valuation of the Pure Theory of Law and of its normative concept of the positive legal order. (shrink)

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 because they are not norm contradictions, but only norm contrarieties, and that the doctrine of dualism collapses into solipsism due to its dependence on the doctrine of recognition. And he argues in support of the -claim that the idea of the primacy of international law within the monistic framework is necessary to account for the existence of states that are legally coordinated and separated from one another in their spheres of validity. In this article, I discuss critically claims and and the arguments - that Kelsen adduces in support of these claims. I argue, more specifically, that while Kelsen is right that only monism is compatible with the epistemological postulate, the claim is unpersuasive that norm contrarieties, as distinguished from norm contradictions, are harmless from the point of view of this postulate, and that in any case not all the norm conflicts identified by the critics of monism are norm contrarieties. I also argue that if the above-mentioned claim had been persuasive, the dualists, too, might have invoked it and avoided Kelsen’s criticism of dualism via the criticism of the doctrine of recognition, and that Kelsen’s claim is well founded that dualism collapses into solipsism because of the collapse of the doctrine of recognition. Finally, I suggest that contrary to what Kelsen appears to think, the epistemological postulate rules out locating law in a higher realm of norms and values that is sharply separated from the world of time and space. (shrink)

To aid neuroscientists in determining the ethical limits of their work and its applications, neuroethical problems need to be identified, catalogued, and analyzed from the standpoint of an ethical framework. Many hospitals have already established either autonomy or welfare-centered theories as their adopted ethical framework. Unfortunately, the choice of an ethical framework resists resolution: each of these two moral theories claims priority at the exclusion of the other, but for patients with neurological pathologies, concerns about the patient’s welfare are treated (...) as meaningless without consideration of the patient’s expressed wishes, and vice versa. Ethicists have long fought over whether suffering or autonomy should be our primary concern, but in neuroethics a resolution of this question is essential to determine the treatment of patients in medical and legal limbo. I propose a solution to this problem in the form of ethical dualism. This is a conservative measure in that it retains both sides of the debate: both happiness and autonomy have intrinsic value. However, this move is often met with resistance because of its more complex nature—it is more difficult to make a decision when there are two parallel sets of values that must be considered than when there is just one such set. The monist theories, though, do not provide enough explanatory power: namely, I will present two recently publicized cases where it is clear that neither ethical value on its own (neither welfare nor autonomy) can fully account for how a vegetative patient should be treated. From the neuroethical cases of Terri Schiavo and Lauren Richardson, I will argue that a dualist framework is superior to its monist predecessors, and I will describe the main features of such an account. (shrink)

The traditional perspective on emotions assumes an unassailable dualism between emotions and reason. For common sense, including legal common sense, emotions are always dangerous and have nothing to do with rational decision-making. Nonetheless, the Aristotelian perspective regarding the relationship between emotions and reason is extremely enlightening. The relationship between emotions and law has been studied by a large range of scholars from different legal movements and with diverse objectives. This chapter is based on three theoretical pillars: Aristotle’s (...) theory of emotions as elaborated in Rhetoric and Nicomachean Ethics, Aristotle’s view on the close relationship between reason, emotions and phronesis as elaborated in the Nicomachean Ethics, and a specific contemporary view: Jurisprudentialism. We assert that through a Jurisprudentialist analysis of Law as an open task and through Aristotle’s account of emotions, the challenges of legal education could be more realistically reassessed. (shrink)

Sovereignty and the sovereign state are often seen as anachronisms; Globalization and Sovereignty challenges this view. Jean L. Cohen analyzes the new sovereignty regime emergent since the 1990s evidenced by the discourses and practice of human rights, humanitarian intervention, transformative occupation, and the UN targeted sanctions regime that blacklists alleged terrorists. Presenting a systematic theory of sovereignty and its transformation in international law and politics, Cohen argues for the continued importance of sovereign equality. She offers a theory of a dualistic (...) world order comprised of an international society of states, and a global political community in which human rights and global governance institutions affect the law, policies, and political culture of sovereign states. She advocates the constitutionalization of these institutions, within the framework of constitutional pluralism. This book will appeal to students of international political theory and law, political scientists, sociologists, legal historians, and theorists of constitutionalism. (shrink)

The continuing existence and operation of the traditional law of Aboriginal and Torres Strait Islander peoples has – relatively recently – been explicitly acknowledged in Australian law. In emerging case law on the subject, the High Court of Australia has confirmed the common law recognition of the survival of Indigenous Australian law. However, in determining what it is that is recognized by the common law – in interpreting Indigenous Australian ‘traditional laws and customs’ – the High Court has disregarded the (...) knowledge reposed in those with authority or expertise in Indigenous Australian law, relying instead upon concepts and assumptions from the jurisprudence of English legal philosopher, HLA Hart. The influence of Hart’s theory in the Australian High Court’s interpretation of Indigenous Australian ‘traditional laws and customs’ is problematic, because it contains an obvious pre-legal–legal dualism reminiscent of the ‘state of nature’ – ‘civil society’ mechanism that was instrumental in the application of terra nullius to Australia. At the heart of The Concept of Law lies the notion of progression from a ‘primitive community’ with only primary rules, to an advanced legal system with a combination of both primary and secondary rules. In this article, I investigate how Indigenous Australians are positioned in relation to Hart’s pre-legal–legal dualism. I examine the ‘primitive’, pre-legal society in The Concept of Law, and its counterpart, the advanced legal system, to analyze the position of Indigenous Australian societies and law in Hart’s scheme. Finally, I analyze the construction of the dualism and consider its impact on the High Court’s interpretation of Indigenous Australian ‘traditional laws and customs’. (shrink)

In this essay, I address the question of whether the indisputable progress being made by the neurosciences poses a genuine threat to the language game of responsible agency. I begin by situating free will as an ineliminable component of our practices of attributing responsibility and holding one another accountable, illustrating this via a discussion of legal discourse regarding the attribution of responsibility for criminal acts. I then turn to the practical limits on agents' scientific self-objectivation, limits that turn out (...) to be mirrored philosophically in the conceptual problems that plague reductionist strategies. Having shown that free will is rooted in unavoidable performative presuppositions belonging to agents' participant perspective, I then take up the difficult issue of how to reconcile an epistemic dualism of participant and observer perspectives with the assumption of ontological monism. I critically review a range of proposed physicalist solutions, including non-reductionist and (standard) compatibilist approaches. An underlying problem with scientistic, physicalist approaches is the methodological fiction of an exclusive ?view from nowhere? which relies on the problematic move of disengaging the objectivating perspective of the scientific observer from the investigators' participant perspective of those engaged in scientific practice. Since there is no way of getting around the requisite complementarity of both the observer's encounter with the objective world and the participant's involvement in shared lifeworld practices, the remaining option is to take an epistemological turn. But even the recognition that science is ultimately constituted from within the lifeworld still leaves us with the question as to how the human mind can understand itself as the product of natural evolution. I conclude with some tentative suggestions as to how this difficult question might be addressed. (shrink)

In his review of Bernard Williams' Ethics and the Limits of Philosophy, Hart eloquently formulated an apprehension that still haunts much of contemporary jurisprudence: if the moral 'I must' has to be 'seen as coming not from outside, but from what is most deeply inside us? the fear is that this will not be enough'. I argue that this fear is the byproduct of the dualist outlook within which Hart—and a significant part of contemporary legal theory—is confined: because of (...) his bald naturalist premise, Hart could not conceive of moral objectivity except in terms presupposing an order of Reason resolutely distinct from the 'natural' world. This paper seeks to debunk this dualist outlook by engaging with the kind of 'non-bald' naturalism advocated in different ways by both McDowell and Blackburn. In considering contemporary efforts to draw a middle way between ethical scepticism and metaphysical rationalism, the paper draws on the pragmatic elements emerging from the confrontation between Habermas and Rawls. (shrink)

The article is devoted to the analysis of the relationship between right and law. The author identifies four types of understanding of right: positivist, natural-legal, general social, and the point of view of educational literature. These four types belong to different paradigms of understanding: the philosophical one (theory of natural right) and the legal one (three other points of view). The philosophy of right as a purely philosophical and not a legal discipline uses a philosophical approach to (...) the substantiation of the essence of right. Its fundamental thesis: it is impossible to prove the claims of the right to general validity and obligation if we use the framework of jurisprudence only. In this regard, the statist positivism is subjected to sharp criticism as a theory that rejects the essential difference between right and law and identifies right and law with the activities of the state alone. In philosophy, the right is understood as a system of values that includes fundamental moral and legal ideas and principles. The difference between right and law, their necessary dualism lies in the difference in their genetic nature. The right consists mainly of values that are inherently regulative, whereas the law is a set of norms that have a constitutive essence. This distinction between values and norms and, therefore, between the regulative as such and the constitutive is precisely the philosophical basis for the distinction between right and law. The essence of the regulative as such is based on ontological attitudes of consciousness, which are a priori in their origin. The article concludes with a classification of the functions of right with regard to law. (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)

This paper examines the legal conception of political parties. It does so by unearthing the history and ontology of the common law relating to political parties in international perspective. The flexibility of the unincorporated association, in which parties are understood through the private law of contract as networks of internal rules or agreements, rather than as legal entities, has proven to be a mask. In the common laws imagination, the ideal party is a ground-up organization animated by its (...) membership. But the law mandates no such thing, and in its statutory and constitutional conception intra-party democracy may be sublimated as parties need be no more than an electoral persona or brand. (shrink)

The focus of this study is an examination of what it means to be a legal person and the role that the law plays in bestowing the legal status of being a person. This study highlights the underpinning rationalities and human interest that establish a hierarchy between person, defined as “human”, at a superior level to everything else, defined as “nonhuman”. In this respect, there is a core notion concerning human exceptionalism based on the rational sovereignty that justifies (...) and consolidates the mastery of nature. To understand the fundamental premises of legal personhood, it begins from the first usage of person in history and philosophy, since the concept of legal personhood has been established through historical and philosophical developments. Analysing the meaning of person through different conceptualisations can allow a deeper insight into the legal interpretation of personhood. As a result of such investigation, two main dualistic structures of legal personhood reveal: the person-property dualism and the human being-person dualism. Thus, legal personhood simultaneously includes personalisation and depersonalisation, and always operates in a hierarchical array. Although the division between persons and things in the concept of personhood is rigid, being a “person” or a “thing” is open to interpretation in different circumstances through legal practices of exclusion and inclusion. Recently, there have been an increasing number of court rulings and a tendency of legislation to recognise the legal personhood of natural entities as a legal way of conserving the environment. This leads to an interpretation that legal recognition is a matter of institutional interest and attempts. Nevertheless, legal practitioners mostly prefer to confer certain rights or the status of a legal person on nature without the consideration of legal personhood’s background as seen in the case discussed in this study - the Tierra Digna case in Colombia. While this study endeavours to demonstrate the anthropocentric standard view of legal personhood, its principal purpose is to indicate the malleable nature of legal personhood as a product of legal fiction. In this context, this study aims to conclude that law’s imaginary nature should be used for producing a new legal reasoning and for offering a real paradigm shift that is congruent with the plasticity of and the fluidity of nature. (shrink)

This article develops a model first proposed in my book Jurisprudence and communication [67]. It takes as its starting point the generally conception that legal rules are valid norms, involving a normative content and expressing themselves in reality through observable conduct. This dualistic character of law is central. Law is both fiction and factual, ideal and real. But the viewpoint that a legal rule is a manifestation of validity in reality, through empirical acts, raises the question how rules (...) as (valid) fictions can be known and understood in their linguistic form. How is meaning attributed to the legal words and how do these words relate to the world of fact? Taking an institutional-pragmatic approach as a starting point, an analytical model is created that can be used as an instrument for the relationship between legal rules as thought objects existing only in the mind, and legal rules as observable conduct. This model seeks to revise the classical models of legal communication that basically focus on the unilateral flow of legal information between ‘senders and receivers’ and their claim of linear causality between rules and conduct. The model here constructed in the theoretical part is then applied to several case studies, in order to analyze the construction of meaning in actual use. Two fundamental rights—the older codified in 1798 and the more recent codified in 1983—in the Dutch Constitution have been analyzed using the model as an instrument. Further, the remarkable shifts in article 96 of the Constitution, the declaration of war, and its consequences, resulting in a new category of war—the armed conflict—have been analyzed, as well as the phenomenon of ‘peacekeeping missions’ involving actual warfare. The new war terminology has created vagueness with respect to the clear-cut division between war and peace, which has been reflected in several cases before Court, including the Eric O. case. The present analysis of the case studies indicates that the model was not in all cases completely tailored to the facts: for example, in the case study on article 96 a broad spectrum of observable legal and non-legal actors dominated the facts in such a way that the model did not fully cover it. The observations on my book by the three respondents in this special issue have contributed to the adaptation and extension of the model. In the Postscript my responses suggest some ways in which their ideas can be implemented. (shrink)

This paper argues that the writings of Hans Kelsen deserve more attention from those engaged in the debate on secularization and political theology. His lifelong struggle with various forms of legal‐political metaphysics is an identifiable thread in many of his writings. Kelsen’s concern with the theological‐political issues found in the theory of the state (Staatslehre) is far from being marginal. Kelsen claims that his theory aims at resolving the traditional dualism of law and state prevailing in the Staatslehre (...) and contributes to an “uncompromising destruction of one of the most effective ideologies of legitimacy.” Kelsen maintains that the contents of this “ideology of legitimacy” derive from both political metaphysics and the deep‐seated ancient ways of thinking on nature and society. In order to illustrate this thesis, I propose calling this phenomenon “totemism of the modern state.”. (shrink)

"Law week soccer competition: 16-19 May 2005." Ethos: Official Publication of the Law Society of the Australian Capital Territory, (198), pp. 25.