GROUNDS OF LAW AND LEGAL THEORY: A Response

Ratio Juris, 1991

Res Publica, 2008

PHILOSOPHICAL ASSUMPTIONS IN LEGAL PHILOSOPHY, 2020

In this article, I argue that the debate between contemporary legal positivism and contemporary natural law philosophy must be understood in terms of underlying assumptions about the nature of philosophy. Despite differing conclusions about the nature of law and legal theory, contemporary legal theorists generally approach the study of law in a similar way. Generally speaking, contemporary legal theorists attempt to provide general accounts of law which are theoretically valuable. They believe that a general and theoretically valuable account of law can be achieved by bracketing-off metaphysical questions and focusing on the analysis of concepts. However, it is ultimately because contemporary legal theorists share assumptions about the nature of philosophy that they share similar problems. Because of these share assumptions, contemporary philosophers of law must choose between two alternatives which have limited theoretical value, namely, an overly formal account of law or a relativistic account of law. Thus, this article is not only a critique of specific contemporary legal theories (those of Dworkin, Hart, Raz and Finnis), but also a more general critique of contemporary legal philosophy as a whole. Only by challenging the basic assumptions which underlie contemporary legal philosophy can we hope to provide accounts of law which are both general and theoretically valuable. INTRODUCTION The traditional debate between natural law and legal positivism is relatively easy to understand. It is easy to understand because the contrast between the two sides was sharp. Traditional natural law philosophers were Thomists in the full sense of the word. They accepted not only Aquinas' position on natural law, but also the metaphysics and epistemology which, they thought, were presupposed in his account of law. Traditional legal positivists were followers of Bentham, and they accepted not just his proposal for the separation of law and morality, but also his reasons for this separation. Traditional legal positivists shared Bentham's distaste for metaphysics and for the pretentions of an ethics grounded in metaphysics and religion. So, the traditional debate between natural law philosophers and legal positivists was a more fundamental debate about the nature of morality and the place of metaphysics in philosophy of law.

The fundamental reasons for officials to apply the criteria of validity available within the system’s rule of recognition, according to a basic reading of The Concept of Law, could be of various provenience (moral,conventional, traditional, other). However, to think of these criteria as genuine reasons it must be supposed thatthey are internal reasons that refer to agents’ motivational set. In this paper, the idea of the internal point of viewis juxtaposed with the notion of “internal reason” as introduced by B. Williams. It is argued that if fundamentallegal reasons are to be normative (authoritative) – at least in a conceptual sense – they must be internal reasons,which are moral in character. It is just another way to build an argument that Hart simply presented an “over-weak” theory of the internal point of view.

On the necessity of legal subjectivity 1. (To what extent) Are right and law bourgeois issues? 1.1. The designation " bourgeois law " is commom parlace and generally accepted as an adequate characterization of our actual law (in general and not just, as for lawyers, of the civil law alone). Its advocates take this bourgeois phomenon to be an achievement and therewith the law to be accomplished to its very core. Its critics on the other hand take " bourgeois law " to be the expression of what is unjust, a law still lacking its true realization as right proper. The aim here is twofold: firstly, to clarify whether this well-kown designation of the law as bourgeois is justified and if so to what extent; secondly to explore how a more detailed and in depth determination of the law as bourgeois could lead to a judgment as to its true content. Property and person – as elements of the will – are highly regarded as what is absolutely essential to this law, together with contract, recognition, wrong, jurisdiction … and, in the end, the ought of this law: justice. These basic components of our law are claiming to express and include all kinds of social relations. Yet for all of these fundamental elements of the legal will generally no reason can nor will be given or ever so much as sought. In this legal system the subject-object-relation called p r o p e r t y stands for a mode of having something at one´s disposal that entails a relation of will to objects whereby the former designates or attributes the latter to itself; not in the sense of the will´s thus containing all modes of having; rather in an abstract way for itself and completely absolved from all material having and willing by human subjects, a kind of having that is somehow alienated from the living human being, a purely " ideal " (Fichte) or " just ... intelligible possession " (Kant), strangely indifferent but also unconditional. In this system of law, being a p e r s o n means the human being explicitly not as the human being – thus contradicting the perceptions of everyday life. In law, the person is rather a subject abstracted from their very human being, a self-referring subject not of flesh and blood – but a being for itself, having barely any relation at all to the in itself volitionally active human being nor to the world: As person the human being is considered (by theirself as by other persons) as a static and one-dimensional entity only and as such the focus of rights. This focus is not altered by the moral appeal that an individual as mere human being should have the valid claim to be esteemed as a person – the difference is already supposed and affirmed. This is evident above all in the appreciation of the individual as person even when this recognition comes with socially intended harming even to the point of ruination of a human existence – as in the case of private or penal legal acts. This kind of subject – one-dimensional, naked and unintentional – also turns out to be the subject of the way of possessing that presents itself as property. Moreover this subject – identical with itself and like all other subjects of its kind – is the subject of legal relationships concerning other persons. So the social relations are not only doubling as human and legal ones. As these combined social relations, especially when they are brought into question, gain reality and permanence just by a third subject, a just legally formed, law making, law adjudicating and law administering entity, the state.

SSRN Electronic Journal, 2001

Catholic University of America Press eBooks, 2019

2014

Foreword [1994] 1–4 LAW AS PRACTICE QUELQUES QUESTIONS MÉTHODOLOGIQUES DE LA FORMATION DES CONCEPTS EN SCIENCES JURIDIQUES [1970] 7–33: 1. Introduction 7 / 2. La particularité de l’objet des sciences juridiques 8 / 3. La particularité de la méthodologie des sciences juridiques 10 / 4. La particularité de la formation des concepts en sciences juridiques: Quelques problèmes 15 [4.1. Le concept du droit 16 / 4.2. Le concept dogmatique du contenu du droit 21 / 4.3. Le concept de la normativité juridique 23 / 4.4. Le concept des lacunes en droit 24] / 5. La particularité de la formation des concepts en sciencesjuridiques: Quelques conclusions 26 / 6. La formation des concepts en sciences juridiques et la réalité: Conclusion finale 29 / 7. Annexe: Des bases d’une classification possible des définitions en sciences juridiques 31 // GELTUNG DES RECHTS – WIRKSAMKEIT DES RECHTS [1978] 35–42 // MACROSOCIOLOGICAL THEORIES OF LAW: A SURVEY AND APPRAISAL [1983] 43–76: I. Issues of the Macrosociological Theories of Law 46 / II. The Role of the Macrosociological Theories in the Social Science Foundation of Legal Thinking 63 // REFLECTIONS ON LAW AND ITS INNER MORALITY [1984] 77–89: 1. Law and Morals As Two Systems of Norms, and the Inner Morality of Law 77 / 2. Law As A Value Bearer and As A Mere External Indicator 78 / 3. The Inner and External Moral Credit of Legislator 83 / 4. The Inner Morality of Law 86 // THE LAW AND ITS LIMITS [1985] 91–96 LAW AS TECHNIQUE DOMAINE »EXTERNE« ET DOMAINE »INTERNE« EN DROIT [1983] 99–117: 1. Le »juridique« et le »non-juridique« 99 / 2. Domaine »externe« et domaine »interne« en tant que groupes de phénomènes 104 / 3. Domaine »externe« et domaine »interne« en tant que points de références 112 / 4. Conclusion 116 // DIE MINISTERIELLE BEGRÜNDUNG IN RECHTSPHILOSOPHISCHER SICHT [1977] 119–139: I. Die prinzipiellen und geschichtlichen Grundlagen der Herausforderung der ministeriellen Begründungen 120 / II. Die möglichen und erwünschten Funktionen der ministeriellen Begründung im sozialistischen Rechts 128 / III. Die ministerielle Begründung und ihr Wert in der Auslegung derRechtsnormen 132 // THE PREAMBLE: A QUESTION OF JURISPRUDENCE [1970] 141–167: I. The Notion of the Preamble 142 / II. Content and Functions of the Preambles 146 / III. Normativity of the Preamble Content 150 / IV. The Problem of the Justifiability of Preamble-drafting in the Light of Socialist Legal Policy 161 // PRESUMPTION AND FICTION: MEANS OF LEGAL TECHNIQUE [1988] 169–185: I. Presumption 169 [1. In the Judicial Process of Establishing the Facts: praesumptio homini vel facti 170 / 2. In the Normative Definition of the Facts: praesumptio juris tantum 170 / 3. In the Normative Definition of the Facts: praesumptio juris et de jure 171 / 4. In a Possible Theoretical Reconstruction 171] On »Presumption« 172 [1. Function 172 / 2. Presumption and Fiction 173 / 3. Irrelevancy of Epistemological Foundation 173 / 4. The Technique of Presumption 174] II. Fiction 175 [1. In the Linguistic Formation of Legal Norms 175 / 2. In the Judicial Application of Legal Norms 175 / 3. In the Doctrinal Processing of Legal Norms 176 / 4. In the Theoretical Reconstruction of Legal Norms 176 / 5. Approaches to and Understandings of Fiction 177] On »Fiction« 178 [1. History and Understandings 178 / 2. Classification 180 / 3. Law as Fiction 181 / 4. Presumption and Fiction 182] // LEGAL TECHNIQUE [1988] 187–198: I. Legal Technique 187 [1. In the Large Sense 1987/ 2. In Legal Practice 189 / 3. In Legal Science 189 / 4. As a Special Technique 190] II. On Legal Technique [1. Definition and Function 190 / 2. Legal Technique and Legal Cultures 192 / 3. Postulates of Legal Technique in the Cultures of Modem Formal Law 195 {a) The Principle of Consequentiality 195 / b) The Principle of Coherency 195 / c) The Principle of Conceptual Economy 196 / d) The Principle of Non-redundancy 196}] LAW AS LOGIC MODERNE STAATLICHKEIT UND MODERNES FORMALES RECHT [1982] 201–207: 1. Die Klassifizierung als logisches und als gesellschaftswissenschaftliches Verfahren 202 / 2. Typologie der staatlichen und rechtlichen Erscheinungen 202 / 3. Der moderne Staat und das moderne formale Recht: Frage der Zusammenhänge und Entwicklungsalternativen 204 // HETEROGENEITY AND VALIDITY OF LAW: OUTLINES OF AN ONTOLOGICAL RECONSTRUCTION [1986] 209–218 // LEIBNIZ UND DIE FRAGE DER RECHTLICHEN SYSTEMBILDUNG [1973] 219–232: 1. Aktualität von Leibniz 219 / 2. Der Gedanke der universalen mathematischen Methode 221 / 3. Die logischen Konzeption der Rechtswissenschaft 224 / 4. Die geometrische Vision der rechtlichen Systembildung 227 / 5. Das Scheitern der Leibnizschen Idee und seine Lehre 230 // LAW AND ITS APPROACH AS A SYSTEM [1975] 233–255: 1. The Logical Structure of Law as a Historical Product 233 / 2. Tendencies of Formal Rationalization in Legal Development 234 / 3. Historical Development of the Approach to Law as a System 239 / 4. Present State of the Attempts at a Logical Reconstruction of Law and Legal Reasoning 243 / 5. Question of the Axiomatic Conception of Law 248 / 6. Heuristic Value of the Approach to Law as a System 250 // LOGIC OF LAW AND JUDICIAL ACTIVITY: A GAP BETWEEN IDEALS, REALITY AND FUTURE PERSPECTIVES [1982] 258–288: 1. Historical Background 259 / 2. Ideals 264 / 3. Reality 270 / 4. Future Perspectives 277 // KELSEN’S PURE THEORY OF LAW – YESTERDAY, TODAY AND TOMORROW [ms] 289–293, THE NATURE OF THE JUDICIAL APPLICATION OF NORMS: SCIENCE- AND LANGUAGE-PHILOSOPHICAL CONSIDERATIONS [ms] 295–314: 1. Presuppositions 295 / 2. The Context of the Application of Norms 300 [2.1 Actualisation in Concrete Meaning 300 / 2.2 Linguistic Undefinedness 304 / 2.3 Lack of Logical Consequence in the Normative Sphere 308] LAW AS EXPERIENCE ON THE SOCIALLY DETERMINED NATURE OF LEGAL REASONING [1971] 317–374: 1. Interrelation of the Creation and Application of Law 317 / 2. The Socially Determined Nature of the Application of Law 332 / 3. The Socially Determined Nature of Legal Reasoning 337 / 4. The Question of Perspectives 363 // TOWARDS THE ONTOLOGICAL FOUNDATION OF LAW: SOME THESES ON THE BASIS OF LUKÁCS’ ONTOLOGY [1983] 375–390, IS LAW A SYSTEM OF ENACTMENTS? [1984] 391–398: 1. Working Models of Law 391 / 2. Senses of ContExtuality in Law 393 / 3. Jurisprudential Approach and Socio-ontological Approach 394 / 4. Conclusions 396 [4.1. Law as Historical Continuum 396 / 4.2.Law as Open System 396 / 4.3. / Law as Complex Phenomenon with Alternative Strategy 396 / 4.4. Law as an Irreversible Process 397 / 4.5. The Genuinely Societal Character of Law 397] // EUROPEAN INTEGRATION AND THE UNIQUENESS OF NATIONAL LEGAL CULTURES [1992] 399–411: 1. The Philosophical Framework 399 / 2. Law as Tradition 403 / 3. European Integration and the Preservation of the Uniqueness of National Legal Orders 407 // INSTITUTIONS AS SYSTEMS: NOTES ON THE CLOSED SETS, OPEN VISTAS OF DEVELOPMENT, AND TRANSCENDENCY OF INSTITUTIONS AND THEIR CONCEPTUAL REPRESENTATIONS [1991] 413–424: I. A Logic of Systems 413 / II. Ideal Types and Historically Concrete Manifestations 416 / III. Ideal Type As A Normative Ideology 418 / IV.Objectivity and Contingency of Systems 420 / V. Limits and Bonds, ConsEquEntiality and Practicability of a System 423 LAW AS HISTORY FROM LEGAL CUSTOMS TO LEGAL FOLKWAYS [1981] 427–436, ANTHROPOLOGICAL JURISPRUDENCE? LEOPOLD POSPÍŠIL AND THE COMPARATIVE STUDY OF LEGAL CULTURES [1985] 437–457: 1. Rule, Fact and Principle in the Concept of Law 438 [a) Abstract rules 439 / b) Abstracts from actual behaviour 439 / c) Principles Upheld by Legal Decisions 440] 2. Attributes of Law 445 [a) Authority 446 / b) Intention of Universal Application 446 / c) Obligatio 447 / d) Sanction 447] 3. Law and its Social Functional Definition 450 [(1) Law is a Global Phenomenon 451 / (2) Law is a Phenomenon Able to Settle Conflicts of Interests 451 / 3) Law is a Phenomenon Prevailing as the Supreme Controlling Factor 452] 4. Conclusion 454 // LAW AS A SOCIAL ISSUE [1985] 459–475: I. The Social Prestige of Law 459 / II. The Social Nature of Law 463 / III. Law and Language in the Service of Social Mediation 466 (1. Passive Mediation and Active Intervention 468 / 2. The Dilemma of the Mediation of Values 472) // LAW AS HISTORY? [1986] 477–484: 1. Understandings of the Term »Law« 477 / 2. Law and History 478 / 3. Law as History 481 // RECHTSKULTUR – DENKKULTUR: EINFÜHRUNG ZUM THEMA [1988] 485–489 Curriculum Vitae 491 / Bibliography 493 // Index 515 / Index of Normative Materials 523 / Index of Names 525