This chapter contains sections titled: Jurisprudence: Method and Subject Matter Legality and Authority Positivism: Austin vs. Hart The Authority of Law Judicial Discretion Incorporationism and Legality Raz' s Theory of Authority Incorporationism and Authority Conclusion Postscript References.

This essay examines two dominant traditions in legal philosophy, the natural law theory and legal positivism, in terms of how they account for the normativity of law. I argue that, although these two traditions generally take the question of the normativity of law seriously and try to account for it, they are not successful in doing so. This failure in the prevailing literature on the philosophy of law, I suggest, nevertheless has an implicit (...) reconstructive impact: the insights into the failure of natural law theory and legal positivism imply an alternative philosophical framework that may provide a positive answer to the question of the normativity of law. (shrink)

In this article the paradoxical role of legal science in legal practice is discussed. On the one hand, legal scientists do not agree on the criterions of the scientific character of legal science. On the other hand, even in the legal cases that are especially complicated it is possible to arrive at theoretically unquestionable decisions. The author of the article concludes that legal practice is based on fundamental theoretical insights; however, in legal practice (...) these insights are used more intuitively than reflectively. Therefore, the aim of the article is to rationally reconstruct these theoretical insights with reference to the ideas of modern schools of legal philosophy. For this purpose the ideas of the theory of natural law are discussed. It is concluded that in legal practice two provisions of natural law are applied: legal decisions ought to be reasonable and must include existential ends (basic values). The evolution of the legal positivism is discussed in the article and it is concluded that legal positivism offers the criterions of the scientific character of legal science by framing the procedural rules of the democratic process of lawmaking. These rules anticipate such conditions: consensus concerning decision making; equal participation of all members of legal discourse confirming normative decisions; the acceptability of consequences after the realisation of normative decisions; the possibility to reaffirm normative decisions, if necessary. The ideas of virtue jurisprudence are discussed and it is claimed that virtue jurisprudence as a criterion of the scientific character of law proposes such theoretical position: the decisions concerning human rights must supply the value system (hierarchy) and the virtues which are formed and justified in the long legal tradition. The article represents the use of these criterions of the scientific character of legal science by Jurgen Habermas to debate about legal prohibition of the improvement of the human genome by using modern technologies of genome engineering in the Convention of Human Rights and Biomedicine (Oviedo, 1997). (shrink)

A Treatise of Legal Philosophy and General Jurisprudence is the first-ever multivolume treatment of the issues in legal philosophy and general jurisprudence, from both a theoretical and a historical perspective. The work is aimed at jurists as well as legal and practical philosophers. Edited by the renowned theorist Enrico Pattaro and his team, this book is a classical reference work that would be of great interest to legal and practical philosophers as well as (...) to jurists and legal scholar at all levels. The work is divided in two parts. The theoretical part (published in 2005), consisting of five volumes, covers the main topics of the contemporary debate; the historical part, consisting of six volumes (Volumes 6-8 published in 2007; Volumes 9 and 10, published in 2009; Volume 11 published in 2011 and Volume 12 forthcoming in 2016), accounts for the development of legal thought from ancient Greek times through the twentieth century. Volume 12 Legal Philosophy in the Twentieth Century: The Civil Law World Volume 12 of A Treatise of Legal Philosophy and General Jurisprudence, titled Legal Philosophy in the Twentieth Century: The Civil-Law World, functions as a complement to Gerald Postema's volume 11 (titled Legal Philosophy in the Twentieth Century: The Common Law World), and it offers the first comprehensive account of the complex development that legal philosophy has undergone in continental Europe and Latin America since 1900. In this volume, leading international scholars from the different language areas making up the civil-law world give an account of the way legal philosophy has evolved in these areas in the 20th century, the outcome being an overall mosaic of civil-law legal philosophy in this arc of time. Further, specialists in the field describe the development that legal philosophy has undergone in the 20th century by focusing on three of its main subjects-namely, legal positivism, natural-law theory, and the theory of legal reasoning-and discussing the different conceptions that have been put forward under these labels. The layout of the volume is meant to frame historical analysis with a view to the contemporary theoretical debate, thus completing the Treatise in keeping with its overall methodological aim, namely, that of combining history and theory as a necessary means by which to provide a comprehensive account of jurisprudential thinking. (shrink)

For Plotinus, although the One and the Intellect are transcendent sources of the cosmos, they are also omnipresent within it. At first, the mutual omnipresence and transcendence of the One and the Intellect seem contradictory, but their omnipresence and transcendence are perfectly consistent outcomes of the relation of the cosmos to the One and the Intellect. For the perfection of the One entails both that the One has power to generate and that it is mutually transcendent and omnipresent in the (...) universe. Plotinus extends his principles of perfection, transcendence, and omnipresence to include the relation of the body to the soul by explaining that the soul can transcend the body while the body is within it. Hence, Plotinus is able to fashion an efficient and consistent metaphysics in which Godcontains the universe and the soul contains the body without denying the transcendent perfection of either. (shrink)

For Plotinus, although the One and the Intellect are transcendent sources of the cosmos, they are also omnipresent within it. At first, the mutual omnipresence and transcendence of the One and the Intellect seem contradictory, but their omnipresence and transcendence are perfectly consistent outcomes of the relation of the cosmos to the One and the Intellect. For the perfection of the One entails both that the One has power to generate and that it is mutually transcendent and omnipresent in the (...) universe. Plotinus extends his principles of perfection, transcendence, and omnipresence to include the relation of the body to the soul by explaining that the soul can transcend the body while the body is within it. Hence, Plotinus is able to fashion an efficient and consistent metaphysics in which Godcontains the universe and the soul contains the body without denying the transcendent perfection of either. (shrink)

Eugenio Bulygin is a distinguished representative of legal science and legal philosophy as they are known on the European continent - no accident, given the role of the civil law tradition in his home country, Argentina. Over the past half-century, Bulygin has engaged virtually all major legal philosophers in the English-speaking countries, including H.L.A. Hart, Ronald Dworkin, and Joseph Raz. Bulygin's essays, several written together with his eminent colleague and close friend Carlos E. Alchourrón, reflect the (...) genre familiar from Alf Ross's On Law and Justice, Hans Kelsen's Pure Theory of Law, and Georg Henrik von Wright's Norm and Action. Bulygin's wide-ranging interests include most of the topics found under the rubric of analytical jurisprudence - interpretation and judicial reasoning, validity and efficacy of law, legal positivism and the problem of normativity, completeness and consistency of the legal system, the nature of legal norms, and the role of deontic logic in the law. The reader will take delight in the often agreeably unorthodox character of Bulygin's views and in his hard-hitting arguments in defence of them. He challenges the received opinion on gaps in the law, on legal efficacy, on permissory norms, and on the criteria for legal validity. Bulygin's essays have been wellnigh inaccessible in the past, appearing in specialized journals, often in Spanish or German. They are now available for the first time in an English-language collection. (shrink)

This chapter contains sections titled: References.

The paper discusses the Anglo-American philosophy of law of the 20th century, more specifically the philosophy of law of Ronald Myles Dworkin and his criticism of the legal positivism of Herbert Lionel Adolphus Hart. The author presents the history of the criticism of legal positivism in Ronald Dworkin’s philosophy of law and distinguishes historical stages. The subject of the study is the critique of legal positivism but not the Hart-Dworkin debate itself, (...) well known in Western philosophy of law. The reason is that the discussion was conducted between Dworkin and Hart’s supporters but not between Dworkin and Hart by himself. The latter responded to the criticism only after twenty seven years. The article explains why Dworkin chose for his criticism Herbert Hart’s version of legal positivism. This is due to the fact that Dworkin highly appreciated Hart’s positivist theory of law and characterized it as the “most clear.” The article presents the methodological foundations of criticism of Hart’s legal positivism in Dworkin’s philosophy of law. It reveals a methodological divergence between the two legal theories, which directly affects the understanding of the concept of law and its content. Therefore, we can assume that the legal theories of Hart and Dworkin are two competing models of law: Dworkin’s model considers law as a set of rules and principles and Hart’s model acknowledges only rules and court decisions as a source of law. The article also presents the key principles of positivism criticized by Dworkin. These principles, firstly, interpret law as a set of legal rules determined through a special legal criterion, secondly, provide the judge with an opportunity to make a decision “at his own discretion” in a situation not regulated by law, and, thirdly, recognize only legal rights and obligations enshrined in legal regulations. It is important to note that in this article the author describes criticism as an independent phenomenon of legal philosophy with a particular focus on the history and foundations of this phenomenon. (shrink)

It is natural to think of legal positivism and jurisprudential naturalism as intellectually allied ideas. Legal positivism is associated with the idea that law is a matter of social fact; naturalism is a philosophical tenet that, among other things suggests the importance of scientific findings and methods to philosophy. At the very least, there seems to be a close family resemblance between the two views. In this essay, I challenge this view from a naturalistic perspective. (...) I show that the best-known proponents of legal positivism in the twentieth century all rejected naturalism. I dedicate most of my discussion to H.L.A. Hart’s version of legal positivism, as it appears superficially friendly to naturalism. I show that throughout his career and in writings on a wide range of topics, Hart consistently argued against the applicability of the methods of science to the explanation of social phenomena. This is not a small matter: I argue that it is this anti-naturalistic stance that contributed to his descriptively faulty account of adjudication. After reviewing more briefly the work of other leading legal positivists, I argue in my conclusion that those seeking to advance a naturalistic approach to law should turn their backs of much of twentieth-century legal positivism, which in various guises has been hostile to naturalism. (shrink)

In the ninth century BCE, the peoples of four distinct regions of the civilized world created the religious and philosophical traditions that have continued to nourish humanity to the present day: Confucianism and Daoism in China, Hinduism and Buddhism in India, monotheism in Israel, and philosophical rationalism in Greece. Later generations further developed these initial insights, but we have never grown beyond them. Rabbinic Judaism, Christianity, and Islam, for example, were all secondary flowerings of the original Israelite vision. Now, (...) in The Great Transformation , Karen Armstrong reveals how the sages of this pivotal “Axial Age” can speak clearly and helpfully to the violence and desperation that we experience in our own times. Armstrong traces the development of the Axial Age chronologically, examining the contributions of such figures as the Buddha, Socrates, Confucius, Jeremiah, Ezekiel, the mystics of the Upanishads, Mencius, and Euripides. All of the Axial Age faiths began in principled and visceral recoil from the unprecedented violence of their time. Despite some differences of emphasis, there was a remarkable consensus in their call for an abandonment of selfishness and a spirituality of compassion. With regard to dealing with fear, despair, hatred, rage, and violence, the Axial sages gave their people and give us, Armstrong says, two important pieces of advice: first there must be personal responsibility and self-criticism, and it must be followed by practical, effective action. In her introduction and concluding chapter, Armstrong urges us to consider how these spiritualities challenge the way we are religious today. In our various institutions, we sometimes seem to be attempting to create exactly the kind of religion that Axial sages and prophets had hoped to eliminate. We often equate faith with doctrinal conformity, but the traditions of the Axial Age were not about dogma. All insisted on the primacy of compassion even in the midst of suffering. In each Axial Age case, a disciplined revulsion from violence and hatred proved to be the major catalyst of spiritual change. (shrink)

The aim of the paper is that of discussing some recent antipositivist theses, with specific reference to the arguments that focus on the alleged incapability of legal positivism to understand and explain the complex normative structure of constitutional states. One of the central tenets of legal positivism (in its guise of ``methodological'' or ``conceptual'' positivism) is the theory of the separation between law and morality. On the assumption that in contemporary legal systems, constitutional law (...) represents a point of intersection between law and basic moral values, antipositivists contrast legal positivism with two main arguments. First, on a more general level, the positivist theory of the separation between law and morality is questioned; then, and consequently, the ``neutrality thesis'' in the juristic study of law is rejected. The author discusses both these antipositivist arguments, and offers a brief defence of methodological positivism. (shrink)

In this volume philosophers from throughout the Asia-Pacific region discuss a wide range of topics related to the development of democratic values and ways of life. The papers explore ideas, values and practices related to democracy from the different perspectives of the great religious and philosophical traditions of Asia, as well as considering both philosophical issues and the place of philosophy in a democratic society. While the contributors represent different philosophical traditions, they are connected through a (...) common concern with humanity, a belief in the value of philosophical inquiry and scholarship and by a commitment to the value of philosophy education in building and sustaining democracy. (shrink)

The aim of the paper is that of discussing some recent antipositivist theses, with specific reference to the arguments that focus on the alleged incapability of legal positivism to understand and explain the complex normative structure of constitutional states. One of the central tenets of legal positivism (in its guise of “methodological” or “conceptual” positivism) is the theory of the separation between law and morality. On the assumption that in contemporary legal systems, constitutional law (...) represents a point of intersection between law and basic moral values, antipositivists contrast legal positivism with two main arguments. First, on a more general level, the positivist theory of the separation between law and morality is questioned; then, and consequently, the “neutrality thesis” in the juristic study of law is rejected. The author discusses both these antipositivist arguments, and offers a brief defence of methodological positivism. (shrink)

ABSTRACT. May scientists rely on substantive, a priori presuppositions? Quinean naturalists say "no," but Michael Friedman and others claim that such a view cannot be squared with the actual history of science. To make his case, Friedman offers Newton's universal law of gravitation and Einstein's theory of relativity as examples of admired theories that both employ presuppositions (usually of a mathematical nature), presuppositions that do not face empirical evidence directly. In fact, Friedman claims that the use of such presuppositions is (...) a hallmark of "science as we know it." But what should we say about the special sciences, which typically do not rely on the abstruse formalisms one finds in the exact sciences? I identify a type of a priori presupposition that plays an especially striking role in the development of empirical psychology. These are ontological presuppositions about the type of object a given science purports to study. I show how such presuppositions can be both a priori and rational by investigating their role in an early flap over psychology's contested status as a natural science. The flap focused on one of the field's earliest textbooks, William James's Principles of Psychology. The work was attacked precisely for its reliance on a priori presuppositions about what James had called the "mental state," psychology's (alleged) proper object. I argue that the specific presuppositions James packed into his definition of the "mental state" were not directly responsible to empirical evidence, and so in that sense were a priori; but the presuppositions were rational in that they were crafted to help overcome philosophical objections (championed by neo-Hegelians) to the very idea that there can be a genuine science of mind. Thus, my case study gives an example of substantive, a priori presuppositions being put to use—to rational use—in the special sciences. In addition to evaluating James's use of presuppositions, my paper also offers historical reflections on two different strands of pragmatist philosophy of science. One strand, tracing back through Quine to C. S. Peirce, is more naturalistic, eschewing the use of a priori elements in science. The other strand, tracing back through Kuhn and C. I. Lewis to James, is more friendly to such presuppositions, and to that extent bears affinity with the positivist tradition Friedman occupies. (shrink)

This article attempts to offer a critical account of the genealogy of ancient Greek philosophy in its bid to transcend the old ruling mythopoeic culture. With this in mind, emphasis is given more to the speculative character of Greek thought rather than its technical and detailed aspects. In my account of the origin of Greek philosophy, I use Plato’s famous pronouncement (Plato, The Republic, Tenth Book) about the great quarrel between philosophy and poetry as a context (...) to provide my analysis. In dealing with the question at hand, I develop the following interrelated claims. First, Greek philosophy made its appearance in the struggle against the mythical background. Here, even though early philosophy tried to move beyond myth, it did not completely transcend the world of mythology. Second, in dealing directly with the quarrel, I identify two issues (problems) as the basis of the conflict: A) the essence of the divine and B) the nature of the universe. Third, I sum up my article by making the following claims. 1) Greek philosophy took the crucial step in trying to explain the cosmos (world) by introducing a single fundamental principle. 2) The transition from traditional mythology to a rational account of the origin and nature of the universe is not the work of a single thinker but the effort of many philosophers over the generations. 3) A proper account of the transition is best explained if we approach it as a result of the process of “continuity in discontinuity”. 4) Early, Philosophy is not so much about the triumph of reason and science, but the conceptualization and differentiation of mythic cultures. Thus in a way, Greek philosophy emerged along with mythic culture against ‘mythic culture’ at the same time. Keywords: physis, nomos, arche, physiology, aperion, mythology, anthropomorphic. (shrink)

This volume provides a critical roadmap through the major historical sources of legal semiotics as we know them today. The history of legal semiotics, now at least a century old, has never been written (a non-event itself pregnant with semiotic possibility). As a consequence, its sources are seldom clearly exposed and, as word, object and meaning change, are sometimes lost. They reach from an English translation of the 1916 inaugural lecture of the first Chair in Legal Significs (...) at the Amsterdam University, via mid 20th century studies on "property" or "contract," to equally fascinating essays on contemporary semiotic problems produced by former students of the Roberta Kevelson Semiotics Roundtable Seminar at Penn State University 2012 and 2013. Together, the materials in this book weave the fabric of semiotics and significs, two names for the unfolding of semiotics in law and legal discourse at least until the second half of the 20th century, and both of which covered a lawyer's focus on sign and meaning in law. The latter is embedded within the cultural imperatives of the civilization that gave these terms meaning and made them an effective tool for the dissection of law, its reconstitution as an instrument to be used by the lawyer to advance the interests of her clients, and for judges as a means to restructure language as a narrative of law whose power could bend behavior to its strictures. Legal semiotics has become an indispensible part of the elite lawyer's toolkit and a fundamental approach to analysis of legal texts. Two previous volumes published in 2011 and 2012 explored the conceptual, methodological and epistemological progress in the field of legal semiotics, the modern forms of semiotics study, and the mechanics of meaning making processes by lawyers. Yet the great lessons of semiotics requires a focus on the origins of the concepts and frameworks that would become contemporary legal semiotics, its origins as an object of the consciousness of meaning making-one whose roots, as lessons for the oracular conversations of law, are expanded in this volume. (shrink)

I want in what follows to suggest – it would take a great deal of space to argue the matter in detail – that each of the prevailing schools of philosophy, the ‘Anglo-Saxon’ and the ‘Continental’, has its characteristic strengths and weaknesses; and that to make effective progress in the philosophy of religion, one needs the virtues of both.

Hobbes’ natural law theory has been discussed far and wide. Some interpreters ended up defining Hobbes as a natural law theorist, some others as a legal positivist. In this paper, I analyse the work of two important scholars, Howard Warrender and Norberto Bobbio, whose insights have stimulated an interesting debate about Hobbes’ political theory. Warrender gives God a central function in Hobbes’ political science. On his account, God is a lawmaker, his will is the source of a universal obligation, (...) and civil order is necessary to give force to the natural law that is the expression of divine will. In Bobbio’s interpretation, Hobbes is the first legal positivist of Modern age, as natural law is only ever given content by the sovereign’s will. Finally, I ask which is natural law and God’s function in Hobbes’ political thought, questioning some contemporary scholars in order to clarify Hobbes’ modernity. (shrink)

As two parts of one overarching legal positivist project, it is likely assumed that the constitutive elements of Joseph Raz’s analysis of the rule of law are compatible with his thinking on the nature of legal authority. The aim of this article is to call this assumption into question by reading Raz in light of the core, if under-recognised, preoccupation of the jurisprudence of Lon Fuller: namely, the latter’s concern to illuminate the relationship between the distinctive form of (...) law and human agency. This not only opens up a new engagement between Raz and Fuller that was far from exhausted within debates about law and morality, but also reveals tensions between Raz’s analysis of the rule of law and his analysis of legal authority that proponents of Raz’s legal positivism need to address. (shrink)

Unlike Dickens’s novel, this is not a tale of light and darkness, order and chaos, good and evil… It is, though, a story worth to be told about two standpoints about games and sports, teaching and research, physical education simply put, that have pursued similar interests on parallel tracks for too long, despite their apparent closeness and expected shared cultural grounds. The objective of this conceptual analysis is to try and reconcile two perspectives, namely motor praxeology and teaching games for (...) understanding (TGfU), born in the last third of the XX century in France and England with the intention to rethink the foundations of physical education (PE) and sports teaching. Pierre Parlebas, from the French side of the English Channel, claimed in 1967 that sports make part of PE, that team sports must be considered from a specific, sociomotor point of view, and that motor conducts (i.e. the significative organization of motor behaviour), not sports techniques, are the corner-stone of PE and sports coaching. In the early 1980s, from the English side of La Manche, Almond, Thorpe, and Bunker made a plea for a shift in the way to teach games (sporting collective duels mostly), deeply concerned by the negative impact of the traditional technics-centred approach on motivation, competence and attained level of the least able in school situations. Our conclusion is that TGfU, or game-based approaches to sports coaching and teaching, can take great advantage of the motor-praxeological rationale for three reasons: firstly, because concepts like understanding, game sense and action principles are operatively, semiotically linked to the reality of the playing process; secondly, because the inner structures of the games that constrain players and guide their motor conducts, permit to integrate games in the general system of sporting games, no matter their level of institutionalisation; finally, because the intervention practice is better thought of and more systematically developed upon the operational concepts of internal logic and expected practical effects of game playing. This time, Paris could be the place to go to in search of solutions, not the city to run away from in hope of consolation. (shrink)

This chapter argues that the Great Ideas are integral to Mortimer J. Adler’s Great Books Movement in much the same way that the Four Noble Truths and the Noble Eightfold Path are integral to Buddhism. Both use ‘Great’ and ‘Noble’ to point toward human excellence. For Adler, the Great Ideas are the metaphysical and moral concepts out of which Western civilization developed. They are the main topics in an ongoing great conversation that shapes Western culture. (...) Precisely because these Great Ideas are great, insofar as they point toward human excellence (virtue), they ought not be considered the exclusive property of the West. Instead, as Adler recognized, they should be utilized in the analysis of other cultural traditions. This chapter uses two of Adler’s Great Ideas, freedom and religion, to analyze Buddhism as it is encountered in the early Indian Buddhist texts. It asserts all human philosophy and culture, including that of Buddhism, is ultimately based in religion, thereby making religion the greatest of Adler’s and the Buddha’s Great philosophical and cultural ideas. (shrink)

Two great problems of learning confront humanity: learning about the nature of the universe and about ourselves and other living things as a part of the universe, and learning how to become civilized or enlightened. The first problem was solved, in essence, in the 17th century, with the creation of modern science. But the second problem has not yet been solved. Solving the first problem without also solving the second puts us in a situation of great danger. All (...) our current global problems have arisen as a result. What we need to do, in response to this unprecedented crisis, is learn from our solution to the first problem how to solve the second one. This was the basic idea of the 18th century Enlightenment. Unfortunately, in carrying out this programme, the Enlightenment made three blunders, and it is this defective version of the Enlightenment programme, inherited from the past, that is still built into the institutional/intellectual structure of academic inquiry in the 21st century. In order to solve the second great problem of learning we need to correct the three blunders of the traditional Enlightenment. This involves changing the nature of social inquiry, so that social science becomes social methodology or social philosophy, concerned to help us build into social life the progress-achieving methods of aim-oriented rationality, arrived at by generalizing the progress-achieving methods of science. It also involves, more generally, bringing about a revolution in the nature of academic inquiry as a whole, so that it takes up its proper task of helping humanity learn how to become wiser by increasingly cooperatively rational means. The scientific task of improving knowledge and understanding of nature becomes a part of the broader task of improving global wisdom. The outcome would be what we so urgently need: a kind of inquiry rationally designed and devoted to helping us make progress towards a genuinely civilized world. We would succeed in doing what the Enlightenment tried but failed to do: learn from scientific progress how to go about making social progress towards as good a world as possible. (shrink)

Reedition of papers in English spanning from 1986 to 2009 /// Historical background -- An imposed legacy -- Twentieth century contemporaneity -- Appendix: The philosophy of teaching legal philosophy in Hungary /// HISTORICAL BACKGROUND -- PHILOSOPHY OF LAW IN CENTRAL & EASTERN EUROPE: A SKETCH OF HISTORY [1999] 11–21 // PHILOSOPHISING ON LAW IN THE TURMOIL OF COMMUNIST TAKEOVER IN HUNGARY (TWO PORTRAITS, INTERWAR AND POSTWAR: JULIUS MOÓR & ISTVÁN LOSONCZY) [2001–2002] 23–39: Julius Moór 23 / (...) István Losonczy 29 // ON THE SURVIVAL OF ILMAR TAMMELO’S LETTER AND MANUSCRIPT ADDRESSED TO PROFESSOR MOÓR [2009] 41–44 // PROFESSIONAL DISTRESS AND SCARCITY: ALEXANDER HORVÁTH AND THE LEGACY OF NATURAL LAW IN HUNGARY [2005] 45–50 // HUNGARIAN LEGAL PHILOSOPHY IN THE 20TH CENTURY [2011] 51–72: I. The Pre-war Period [1. Bódog (Felix) Somló (1871–1920) 52] / II. The Inter-war Period [2. Gyula (Julius) Moór (1888–1950) 54 / 3. Barna Horváth (1896–1973) 55 / 4. József Szabó (1909–1992) 57 / 5. István Bibó (1911–1979) 58 / 6. Tibor Vas (1911–1983) 59 / 7. István Losonczy (1918–1980) 60] III. The Post-war Period (Communism) 61 [8. Imre Szabó (1912–1991) 62 / 9. Vilmos Peschka (1929–2006) 63 / 10. Kálmán Kulcsár (1928–2010) 65] IV. Contemporary Trends and Perspectives 66 [11. Csaba Varga (b. 1941) 66 / 12. András Sajó (b. 1949) 69 / 13. Béla Pokol (b. 1950) 70] V. Our Understanding of the Law Today 71 --- AN IMPOSED LEGACY -- LOOKING BACK [1999] 75–94: 1. On Ideologies and Marxism in general 75 / 2. Life of an Intellectual in Communism 79 / 3. On Marxism and its Socialist Cultivation in Particular 82 / 4. Legal Philosophising [4.1. Approaches to Law 87 / 4.2. Arriving at a Legal Ontology 91] 5. Conclusion 94 // LEGAL PHILOSOPHY OF THE MARXISM OF SOCIALISM: HUNGARIAN OVERVIEW IN AN INTERNATIONAL PERSPECTIVE [2003] 95–151: I. Development and Balance of Marxist Philosophising on Law in Hungary [1. Preliminaries (until 1948) 96 / 2. Stalinism (from the Soviet Occupation on) {a) Liquidation of the »Residues« 98 / b) Soviet-type Uniformisation [Gleichschaltung] 99 / c) Denial of the Past, with a Dual Effect 99 / d) »Socialist Legality«, Drawn from the Progressive Past of Western Europe 103 / e) Search for the Germs of Scholarly Evolution 103} 3. Institutionalisation Accompanied by Relaxation (from the 1960s) [a) Epigonism Becoming the Scholarly Ideal 104 / b) Stalinism in a Critical Self-perspective 105 / c) Disciples Diversified Launching their own Trends 107 / d) Comparatism 110 / e) (Re)discovery of the Western Legal Philosophy as a Competitor 112 / f) A Leading Mediatory Role within the »Socialist World Order« 114} 4. Disintegration (in the 1980s) {a) Attempt at Laying New Foundations for Marxism with Epigonism Exhausted 115 / b) Competitive Trends Becoming Exclusive 115 / c) Western Legal Philosophy Acknowledged as a Fellow-traveller within the Socialist Orbit Proper 116 / d) Hungarian Legal Theory Transforming into a National Corpus 118 / e) The Practical Promotion of Some Balance 119} 5. End-game for a Substitute State Religion (in the 1990s) 120] II. Marxist Legal Philosophising in an International Perspective [Ad 1: To the Preliminaries 122 / Ad 2: To Stalinism 124 / Ad 3: To Institutionalisation Accompanied by Relaxation {a) Late Separation from Vishinskiy’s Theory 125 / b) From Ideological Self-closure to an Apparently Scholarly Openness 127 / c) From Political Ideology to Genuine Scholarship 130 / d) International Recognition of Socialist Jurisprudence as an Independent Trend 135 / e) Together with Western Trends 137} Ad 4: To Disintegration {a) Loss of Attraction as Mere Epigonism 139 / b) Exclusivity of Competing Trends 139 / c) Fellowship with »Bourgeois« Trends 140 / d) An own Trend, Internationally Recognised 141 / e) A yet Progressive Role 142} Ad 5: To the Present state 143] III. A Temporary Balance 145 // AUTONOMY AND INSTRUMENTALITY OF LAW IN A SUPERSTRUCTURAL PERSPECTIVE [1986] 151–175: 1. The Strange Fate of Concepts 151 / I. A Relational Category 2. Basis and Superstructure: The Genuine Meaning 154 / 3. Exerting Social Influence as a Conceptual Minimum 156 / 4. Relationships within the Prevailing Totality 158 / 5. Attempts at Interpretation in Hungary 159 / 6. The Lukácsian Stand 162 / 7. Lukács’s Recognitions 168 / 8. Some Criticism 169 / II. The Law’s Understanding 171 / 9. Law Interpreted as Superstructure 171 / 10. Conclusions Drawn for the Law’s Understanding 173 // LEGAL THEORY IN TRANSITION (A PREFACE FROM HUNGARY) [2000] 177–186 // DEVELOPMENT OF THEORETICAL LEGAL THOUGHT IN HUNGARY AT THE TURN OF THE MILLENNIUM [2006] 187–215: 1. International Environment 188 / 2. The Situation in Hungary 190 / 3. Outlook I: The Historical-comparative Study of Legal Cultures and of the Lawyerly Way of Thinking 203 / 4. Outlook II: The Paradigmatic Enigma of the Transition to Rule of Law 207 / 5. Incongruity in Practice 213 / 6. Perspectives 214 --- TWENTIETH CENTURY CONTEMPORANEITY -- CHANGE OF PARADIGMS IN LEGAL RECONSTRUCTION: CARL SCHMITT AND THE TEMPTATION TO FINALLY REACH A SYNTHESIS [2002] 219–234: 1. Dangers of Intellectualism 219 / 2. Schmitt in Facts 221 / 3. Schmitt and Kelsen 222 / 4. On Bordering Conditions 226 / 5. With Kelsen in Transubstantiation 230 / 6. Polarisation as the Path of Theoretical Development 232 // KELSENIAN DOCUMENTS IN HUNGARY: CHAPTERS ON CONTACTS, INCLUDING THE GENESIS OF AUTOBIOGRAPHY [2006] 235–243: 1. Preludes 235 / 2. The Search for Moór’s Bequeath 235 / 3. Moór’s Collegiality 238 / 4. Bibó as a Disciple Translating 241 // THE »HART-PHENOMENON« [2002] 245–267: I. The Hart-miracle 246 [1. The Scene of Britain at the Time 247 / 2. The Personal Career 250 / 3. The Opus’ Career 252 / 4. Verbal Sociologism 255 / 5. Growing into the British Pattern 259] II. The Hart-phenomenon 260 [6. Origination of a Strange Orthodoxy 261 / 7. Mastering Periods of the 20th Century 263 / 8. Raising the Issue of Reception in Hungary 365] // LITERATURE? A SUBSTITUTE FOR LEGAL PHILOSOPHY? [2007] 269–287: 1. The Enigma of Law and its Study 269 / 2. “Law and Literature” 271 / 3. Varieties of “Law and Literature” 274 / 4. The German Study of Artistic Representations 280 / 5. Some Literary Reconsiderations 285 / 6. Conclusion 287 --- APPENDIX -- THE PHILOSOPHY OF TEACHING LEGAL PHILOSOPHY IN HUNGARY [2007] 291–320: I. Why and How to Philosophise in Law? 291 / II. The State of Teaching Legal Philosophy 294 / III. The Philosophy of Teaching Legal Philosophy 296 / IV. Programme at the Catholic University of Hungary 300 [1. Graduate Studies 300 {a) Basic Subjects 301 / b) Facultative Seminars 305 / c) Closing Subjects 309 / d) Written Memoranda and the Thesis 312} 2. Postgraduate Studies 313 / 3. Conclusion 317] V. Perspectives 318 /// Index of Subjects 321 / Index of Normative Materials 328 / Index of Names 329 . (shrink)

Analyses of Theories and Methods of Physics and Psychology was first published in 1970. Minnesota Archive Editions uses digital technology to make long-unavailable books once again accessible, and are published unaltered from the original University of Minnesota Press editions.This is Volume IV of the Minnesota Studies in the Philosophy of Science, a series published in cooperation with the Minnesota Center for Philosophy of Science at the University of Minnesota and edited by Herbert Feigl and Grover Maxwell. Dr. Feigl (...) was the director of the Center.In a preface to the first volume in the series, Professors Feigl and Michael Scriven noted the extensive concern of the Center with "the meaning of theoretical concepts as defined by their locus in the 'nomological net' and the related rejection of the reductionist forms of operationism and positivism." In this volume, several contributors are again concerned with philosophical, logical, and methodological problems of psychology. As before, some papers deal with broad philosophical issues, others with more specific problems of method or interpretation. However, a deep concern for logical and methodological problems of special relevance to the physical sciences is reflected in a number of essays.The contents are arranged in two sections, the first part being based on the papers and discussion from a conference held at the Center on the problems of correspondence rules. Contributors are Herbert Feigl, Paul K. Feyerabend, N.R. Hanson, Carl G. Hempel, Mary Hesse, Grover Maxwell, and William Rozeboom. The second group of essays, by various members of the staff of the Center and some of its visitors, reflects current issues and controversies of great interest. The contributors are William Demopoulos, Keith Gunderson, Paul E. Meehl (three essays), and Michael Radner. (shrink)

This chapter discusses two different issues about the relationship between legal positivism and robust normativity (understood as the most authoritative kind of normativity to which we appeal). First, the chapter argues that, in many contexts when discussing “legal positivism” and “legal antipositivism”, the discussion should be shifted from whether legal facts are ultimately partly grounded in moral facts to whether they are ultimately partly grounded in robustly normative facts. Second, the chapter explores an important (...) difference within the kinds of arguments that legal philosophers give for the (purported) truth of legal positivism. The difference concerns whether (purportedly) robustly normative facts are appealed to as premises in those arguments or not. (A closely connected issue is whether (purportedly) normative facts that bear one or more important connections to robustly normative facts are appealed to in premises to those arguments.) The chapter argues that thinking about this dividing line helps people better situate the positivist/antipositivist dispute, better understand the space of views in legal philosophy, better evaluate those views, and avoid having merely verbal disputes. (shrink)

Legal positivists maintain that the legality of a rule is fundamentally determined by social facts. Yet for much of legal history, ordinary officials used legal terminology in ways that seem inconsistent with positivism. Judges regularly cited, analyzed, and predicated their decisions on the ‘laws of justice’ which they claimed had universal legal import. This practice, though well-documented by historians, has received surprisingly little philosophical attention; I argue that it invites explanation from positivists. After taxonomizing the (...) positivist’s explanatory options, I suggest that the most viable option appeals to conceptual change: classical Romans, early modern Europeans, founding-era Americans were not using ‘law’ (or ‘lex’ or ‘jus’) to refer to the subject matter of contemporary legal philosophy. But the strategy is costly. It renders positivism’s truth surprisingly parochial. And it supplies new reasons for doubting positivist accounts of contemporary practices, including the treatment of moral principles in modern adjudication. (shrink)

In this paper I put forward some arguments in defence of inclusive legal positivism . The general thesis that I defend is that inclusive positivism represents a more fruitful and interesting research program than that proposed by exclusive positivism . I introduce two arguments connected with legal interpretation in favour of my thesis. However, my opinion is that inclusive positivism does not sufficiently succeed in estranging itself from the more traditional legal positivist conceptions. (...) This is the case, for instance, with regard to the value-freedom principle, which is commonly accepted by inclusive positivist scholars. In contrast with this approach, I try to show, in the concluding section, how a constructivistic version of inclusive positivism could legitimately acknowledge the presence of value-judgments in the cognitive activities of jurists and legal theorists. (shrink)

This book brings together the study of two great disciplines of the Islamic world: law and philosophy. In both sunni and shiite Islam, it became the norm for scholars to acquire a high level of expertise in the legal tradition. Thus some of the greatest names in the history of Aristotelianism were trained jurists, like Averroes, or commented on the status and nature of law, like al-Fārābī. While such authors sought to put law in its place relative (...) to the philosophical disciplines, others criticized philosophy from a legal viewpoint, like al-Ghazālī and Ibn Taymiyya. But this collection of papers does not only explore the relative standing of law and philosophy. It also looks at how philosophers, theologians, and jurists answered philosophical questions that arise from jurisprudence itself. What is the logical structure of a well-formed legal argument? What standard of certainty needs to be attained in passing down judgments, and how is that standard reached? What are the sources of valid legal judgment and what makes these sources authoritative? May a believer be excused on grounds of ignorance? Together the contributions provide an unprecedented demonstration of the close connections between philosophy and law in Islamic society, while also highlighting the philosophical interest of texts normally studied only by legal historians. (shrink)

In the contemporary intellectual scene, one prominent question is this, what made science and its success possible? One tempting strategy for dealing with this question as a philosopher of science is to use science (or more broadly, empirical inquiry) and its methods to investigate the nature of science and its success. This strategy is what used to be called naturalism. For a philosopher of science, it amounts to naturalizing her philosophical inquiry for understanding the nature of science and its success. (...) The project of naturalizing philosophy of science has not been without its own problems. Some of the concerns are as follows. Willphilosophy of science maintain its traditional normative character after going through the process of naturalization? If it does, what form(s) will its normative content take? Can that normative content be secured without appealing to methods other than those usually used in empirical inquiries? In this essay, I will call these issues collectively the problem of normativity. First of all, I’ll look into the two most representative attempts to naturalize philosophy of science, namely L. Laudan’s and R. Giere’s attempts, focusing on the views that could be taken as their answers to the questions constituting the problem of normativity. Then I’ll examine these views in the light of some prominent criticisms and potential problems, and argue that some of those views could be defended by developing one or other additional conceptual arsenals but still others need to be curbed down admitting the apparent weaknesses of their supporting arguments. This reevaluative process will give us a better idea about what have been achieved by the attempts to naturalize philosophy of science and what their limitations are. (shrink)

Many of the current debates in jurisprudence focus on articulating the boundaries of law. In this essay I challenge this approach on two separate grounds. I first argue that if such debates are to be about law, their purported subject, they ought to pay closer attention to the practice. When such attention is taken it turns out that most of the debates on the boundaries of law are probably indeterminate. I show this in particular with regard to the debate between (...) inclusive and exclusive positivists: I present several ways of understanding what this debate is about and argue that none of them is defensible. My second argument focuses more on the purpose of jurisprudential inquiry. I argue there that even if some jurisprudential debates have determinate answers, it does not follow that they deserve our attention, because not all true facts are worth knowing. After discussing and rejecting the claim that jurisprudence could be justified as knowledge for its own sake, I propose one possible justification for engaging in legal philosophy and outline its implications for the kind of issues that should be pursued. (shrink)

This ambitious book examines the notion of legal transparency from a unique cultural and historical perspective. Drawing from their combined academic and practical experience with both Chinese and Western legal traditions, authors John Head and Xing Lijuan explore how an intense debate — pitting legal transparency against legal opaqueness — unfolded in dynastic Chinese law, which began in the dark mists of history and ended formally just over a hundred years ago. They rely on a (...) wide range of both Western and Chinese sources to explain how that great debate was resolved in the early Han Dynasty (around the third century BCE) in a way that molded Chinese law into a sophisticated legal system that for roughly two millennia balanced definitiveness with vagueness, predictability with flexibility, and egalitarianism with privilege — and that reflected cultural values still resonating in China today. Legal Transparency in Dynastic China presents a clear narrative that assumes no prior expertise in Chinese law or history, and it caters to readers interested in issues of good governance, comparative studies, China, history, and law. The book begins by defining “legal transparency” and explaining where it fits into the larger context of the transparency-in-government movement that has gained such momentum in recent years, especially at the urging of Western powers. Then the book explains the fundamentally different values espoused by early Confucianists, for whom society is best governed not through written law but through the exemplary behavior of a highly educated, virtuous, and enlightened elite. After tracing the political and ideological challenges that the Confucianists faced from the Legalists, Head and Xing examine the compromise that resulted in the so-called “Confucianization of the Law” around 200 BCE. They then show how that alloy of competing ideologies characterized Chinese dynastic law for many centuries, resulting in what some would consider the most enduring and effective legal system in human history. (shrink)

The hypothesis of this paper is that legal positivism depends on the non plausibility of strong moral cognitivism because of the non necessary connection thesis between law and morality that legal positivism is supposed to acknowledge. The paper concludes that only when based on strong moral cognitivism is it consistent to sustain the typical non-positivistic thesis of the necessary connection between law and morality. Habermas’s Philosophy of law is confronted with both positions.

The Hannah Arendt Bluecher Literary Trust has granted permission to Social Research to publish for the first time a lecture given by Arendt in 1953, the provenance of which is her so-called Marx manuscripts. The lecture here entitled "The Great Tradition" has been divided into two parts, the first of which, subtitled "Law and Power," appears in the current issue, and the second, subtitled "Ruling and Being Ruled," will appear in the next issue. The Marx manuscripts, as they go (...) on, have less and less to do with Karl Marx, but even when, as here, he is not named or his thought directly addressed, he remains, in one important respect, in the background. In the first part of "The Great Tradition" the relation between law and power, and in the second part the conception of government as ruling and being ruled, are analyzed by Arendt as fundamental elements in the tradition of political thought; what the reader needs to be aware of , is that the lasting importance of Marx to Arendt is his having brought the tradition to its end by returning it to its beginning. The tradition began when Plato replaced action with philosophy, and ended when Marx transformed philosophy into action. In both its beginning and its end—and this is why Marx himself remains within the tradition—the pre-philosophic and perhaps antiphilosophic experience of freedom in action, Arendt's primary political concern, is missing. (shrink)

With his contribution on "The Natural Law in the American Tradition," Judge Diarmuid O'Scannlain has begun the indispensable task of laying the groundwork for sound jurisprudential reasoning in the natural law tradition. It is on the basis of this groundwork that we can begin to appreciate what natural law reasoning might mean, and what it does not mean, for contemporary American legal thinking. More specifically, it is on the basis of this groundwork that one can begin to articulate what (...) might be called a "third way" of jurisprudential reasoning. This "third way" would steer clear of two opposed and equally problematic jurisprudential views; that is, it would steer clear of what we might call "standard legal positivism" (on the one hand), and (on the other hand) what Judge O'Scannlain calls the "aggressive" natural law jurisprudence of some contemporary theorists. (shrink)

The war between natural law philosophy and legal positivism is an ancient one. For a time the stunning victories of Bentham and Austin virtually drove the forces of natural law from the battlefield. However, upon the collapse of Germany and Japan at the end of the Second World War, natural law became a useful tool in attempting to resolve the practical difficulties of trying war criminals. This fact and the rise of two able antagonistic generals, H. L. (...) A. Hart and Lon Fuller, have sparked a new series of battles. (shrink)

One of the frequent philosophical problems of legal ethics is the conflict between common and role morality. This situation is where a lawyer's actions are evaluated differently by these two sets of moral norms. The article seizes on this as a conflict between two conventional moralities that need to be resolved with the help of a justificatory morality and thus an appropriate theory of normative ethics. It offers as a possible response a variant of consequentialism that draws on utilitarianism (...) and brings it closer to pragmatism. This approach seeks to preserve the traditional advantages of utilitarianism, which are minimalist and plausible normative assumptions, and an excellent ability to resolve moral conflicts. At the same time, it takes into account the complex nature of the world in which we live and our epistemic uncertainty, which brings it closer to pragmatism. The author confronts this theory with some existing approaches to resolving the conflict between the common and role morality and tries to show that it is at least as plausible as they are and should have a place among them. Finally, the article concludes with an analysis of the famous case of Alton Logan as its practical application. (shrink)

Philosophy, political philosophy and legal philosophy are all concerned with issues of justice and the validity of law (also known as the force of law ). These two problem areas are discussed against the background of the intersection of traditional theories of natural law and legal positivism, mediated by the contribution of the historical school. In addition the influence of the two neo-Kantian schools of thought (Baden and Marburg) required attention, particularly because certain elements (...) in the thought of Derrida, Dooyeweerd and Habermas are (implicitly) influenced by these schools. Derrida positions the problem of justice within the context of distinguishing universality and singularity (what is unique) and he alludes to the difficulty of bridging the gap between the two. It turned out that modern nominalism had an important effect on all three of the mentioned thinkers, in spite of their willingness to recognize “extra-mental” forms of universality. The problem of legal validity (the “force of law”) appears to be an instance of the interconnectedness between different aspects of reality, namely the jural and the physical . In order to account for this coherence Dooyeweerd developed a theory in which both the uniqueness and coherence between different aspects are explained in terms of inter-modal analogies. On this basis the difference between law and justice is specified by distinguishing between constitutive legal principles and the regulatively deepened (disclosed) principles of legal morality (such as f ault, equity, bona fides and so on). It will be shown that the idea of positivization , shared by thinkers coming from different backgrounds, is an important ingredient of an understanding of the nature of legal validity . Explaining it will require a focus on the nature of state law, of the power of the state, and of the legal competence entailed in the office of government. (shrink)

This article covers the traditional problems of the philosophy of law: the controversies between realism and normativism, on the one hand, and positivism and non-positivism, on the other. The author, adopting the ontological perspective of the artefactual theory of law, attempts to attain two research aims. First, he argues that artefactual theory of law paves the way towards a moderate position overcoming realism-normativism duality. Second, he advocates the thesis that the supposedly ontological difference between positivist and non-positivist (...) views might be dispelled and described as merely conceptual. Therefore, the opposite points of view could be considered as metaphysically equivalent ways of grasping the same social reality. According to the crucial premise of the argument law is a meliorative thick concept. The essay was inspired by an analogy between the philosophy of law and the philosophy of science first discussed by Lon L. Fuller. (shrink)

The article reconstructs the premises of the reception of analytic philosophy in jurisprudence and shows that the development of a method for clarifying the meanings of legal concepts is not least connected with the problem of legitimizing law enforcement. The article analyzes H.L.A. Hart’s approach to the problem of correlation between the “letter” and “spirit” of the law in the process of interpreting legal norms. The article argues that the process of interpretation is determined teleologically. In its (...) limit, the interpretation of legal norms presupposes the re-creation of the desired image of society, the reconstruction of such social ontology that is most consistent with the ideal of achieving social welfare. The article examines the collision of the “ideal of order” and the “ideal of justice” as two regulations of law enforcement. The author believes that the interpretation of this collision within the analytical tradition was characterized by a gradual movement from the ideal of “mechanical” law enforcement, which minimizes the creative role of the interpreter, to the ideal of flexible interpretation focused on achieving legal goals in a changing environment. It is noted that, according to analytic approach, a theoretical solution to this conflict was proposed due to the development of the ideas of an “open texture” of law. The author demonstrates that the development of the analytic tradition in jurisprudence has shown that the criticism of language and the interpretation of meanings are not technical tasks, but it presupposes the construction of a metaphysics of law. In this regard, the author concludes: the development of the ideas of the analytic tradition in jurisprudence demonstrates that the thesis about the absence of a positive program in analytic philosophy, put forward in the first article of the discussion, can be challenged. (shrink)

Responds to Leiter's naturalist/realist approach to jurisprudence - particularly his claim that such an approach implies exclusive positivism. Considers analogy with naturalized epistemology. "With regard to the first step the realists were anti-foundationalists in the sense that they 'denied that legal reasons justify a unique decision: the legal reasons underdetermine the decision '. The second step, the replacement suggests that instead of a justificatory account of adjudication, i.e. some prescription as to how judges should decide cases, the (...) reaslists provided an empirical description o fhow judges actually decide cases." Notes that positivists are generally commited to a moderate foundationalism by their acceptance of a RoR. "[T]he analogy with the epistemological anti-foundationalist thesis would suggest that foundationalism in law is committed to the view that if X is a legal norm, it is a legal norm in virtue of inference from self-validating foundations. There is nothing in this view that commits the legal foundationalist to the view that legal norms necessarily cover the entire practical domain, and therefor provide a determinate answer to every practical question...Now, if the anti-foundationl step fails, then we need not, indeed must not, take the second step, because if we take it, we will lsoe something of great importance for our understanding of law. If legal norms qua reasons are part of what determines the outcome of cases, then in order to understand how legal decisions are reached, we cannot disregard them." If Leiter rejects this moderate foundationalism, then it is in tension with his other claim that the realists were positivists. Goes on to argue that nothing in the realist program contributes to the hard vs. soft positivism debate and, in fact, does nothing to substantiate positivism. Offers brief explication of "positivism of norms". (shrink)

In the present essay, I consider the relevance of evolutionary psychology (EP) for legal positivism, addressing the two main traditions in the legal positivist family: (1) the tradition I identify with the works of Hart and Kelsen and characterize as “normativist,” as it tries to describe law as a purely or, at least, as an essentially normative phenomenon, while remaining true to the ideal of scientific objectivity and value-neutrality; (2) the tradition I broadly refer to as (...) “legal realism,” which equates law with adjudication and “legal science” with the task of explaining judicial behaviour. (shrink)