Bøger i Law and Philosophy Library serien

Instead of the usualapologetic treatment found in legal doctrine, linked to the determinacy,immutability or predictability of norms, this book treats legal certaintyinnovatively, holistically and in depth.

This book critically examines the conception of legal science and the nature of law developed by Hans Kelsen. It provides a single, dedicated space for a range of established European scholars to engage with the influential work of this Austrian jurist, legal philosopher, and political philosopher.The introduction provides a thematization of the Kelsenian notion of law as a legal science. Divided into six parts, the chapter contributions feature distinct levels of analysis. Overall, the structure of the book provides a sustained reflection upon central aspects of Kelsenian legal science and the nature of law.Parts one and two examine the validity of the project of Kelsenian legal science with particular reference to the social fact thesis, the notion of a science of positive law and the specifically Kelsenian concept of the basic norm (Grundnorm). The next three parts engage in a critical analysis of the relationship of Kelsenian legal science to constitutionalism, practical reason, and human rights.The last part involves an examination of the continued pertinence of Kelsenian legal science as a theory of the nature of law with a particular focus upon contemporary non-positivist theories of law. The conclusion discusses the increasing distance of contemporary theories of legal positivism from a Kelsenian notion of legal science in its consideration of the nature of law.

It provides detailed analyses of argument from authority, argument ad hominem, argument from ignorance, slippery slope argument and other general argument types. To evaluate an argument correctly one must be able to distinguish the sound instances of a certain argument type from its unsound instances.

The present collection represents an attempt to bring together several contributions to the ongoing debate pertaining to supervenience of the normative in law and morals and strives to be the first work that addresses the topic comprehensively.

This book is a thorough treatise concerned with coherence and its significance in legal reasoning. By presenting such a broad scope of views and methods on approaching the issue of coherence we hope to promote the general interest in the topic as well as the academic research that centers around coherence and law.

This book features essays that investigate the nature of legal validity from the point of view of different traditions and disciplines. Some propose to redefine validity: to allow for multiple concepts instead of one and/or to allow for a gradual concept of validity.

The concept of convention has been used in different fields and from different perspectives to account for important social phenomena, and the legal sphere is no exception.

This book engages in an analytical and realistic enquiry into legal interpretation and a selection of related matters including legal gaps, judicial fictions, judicial precedent, legal defeasibility, and legislation.

The present collection represents an attempt to bring together several contributions to the ongoing debate pertaining to supervenience of the normative in law and morals and strives to be the first work that addresses the topic comprehensively.

In this book, experts from the fields of law and philosophy explore the works of Aristotle to illuminate the much-debated and fascinating relationship between emotions and justice.

This book explores the interrelation of facts and norms. Today, Jellinek's concept still provides astonishing insights on the dichotomy of "is" and "ought to be", the emergence of the normative, the efficacy and the defeasibility of (legal) norms, and the distinct character of what legal theorists refer to as "normativity".

A theme of growing importance in both the law and philosophy and socio-legal literature is how regulatory dynamics can be identified (that is, conceptualised and operationalised) and normative expectations met in an age when transnational actors operate on a global plane and in increasingly fragmented and transformative contexts. A reconsideration of established theories and axiomatic findings on regulatory phenomena is an essential part of this discourse. There is indeed an urgent need for discontinuity regarding what we (think we) know about, among other things, law, legality, sovereignty and political legitimacy, power relations, institutional design and development, and pluralist dynamics of ordering under processes of globalisation and transnationalism.Making an important contribution to the scholarly debate on the subject, this volume features original and much-needed essays of theoretical and applied legal philosophy as well as socio-legal accounts that reflect on whether legal positivism has anything to offer to this intellectual enterprise. This is done by discussing whether global and transnational cultural, socio-political, economic, and juridical challenges as well as processes of diversification, fragmentation, and transformation (significantly, de-formalisation) reinforce or weaken legal positivists' assumptions, claims, and methods. The themes covered include, but are not limited to, absolute and limited state sovereignty; the 'new international legal positivism'; Hartian legal positivism and the 'normative positivist' account; the relationship between modern secularisation, social conventionalism, and meta-ontological issues of temporality in postnational jurisprudence; the social positivisation of human rights; the formation and content of jus cogens norms; feminist critique; the global and transnational migration of principles of justice and morality; the Vienna Convention on the Law of Treaties rule of interpretation; and the responsibility of transnational corporations.

This volume critically discusses therelationship between democracy and constitutionalism. It does so with a view torespond to objections raised by legal and political philosophers who aresceptical of judicial review based on the assumption that judicial review is anundemocratic institution. The book builds on earlier literature on the moraljustification of the authority of constitutional courts, and on the currentattempts to develop a system on "weak judicial review". Although different intheir approach, the chapters all focus on devising institutions, proceduresand, in a more abstract way, normative conceptions to democratizeconstitutional law. These democratizing strategies may vary from a radicalobjection to the institution of judicial review, to a more modest proposal tojustify the authority of constitutional courts in their "deliberativeperformance" or to create constitutional juries that may be more aware of acommunity's constitutional morality than constitutional courts are. The book connects abstract theoreticaldiscussions about the moral justification of constitutionalism with concreteproblems, such as the relation between constitutional adjudication anddeliberative democracy, the legitimacy of judicial review in internationalinstitutions, the need to create new institutions to democratizeconstitutionalism, the connections between philosophical conceptions andconstitutional practices, the judicial review of constitutional amendments, andthe criticism on strong judicial review.

This book examines the success of Frederick Schauer's efforts to reclaim force as a core element of a general concept of law by approaching the issue from different legal traditions and distinct perspectives.

This book explores the interrelation of facts and norms. Today, Jellinek's concept still provides astonishing insights on the dichotomy of "is" and "ought to be", the emergence of the normative, the efficacy and the defeasibility of (legal) norms, and the distinct character of what legal theorists refer to as "normativity".

A theme of growing importance in both the law and philosophy and socio-legal literature is how regulatory dynamics can be identified (that is, conceptualised and operationalised) and normative expectations met in an age when transnational actors operate on a global plane and in increasingly fragmented and transformative contexts. A reconsideration of established theories and axiomatic findings on regulatory phenomena is an essential part of this discourse. There is indeed an urgent need for discontinuity regarding what we (think we) know about, among other things, law, legality, sovereignty and political legitimacy, power relations, institutional design and development, and pluralist dynamics of ordering under processes of globalisation and transnationalism.Making an important contribution to the scholarly debate on the subject, this volume features original and much-needed essays of theoretical and applied legal philosophy as well as socio-legal accounts that reflecton whether legal positivism has anything to offer to this intellectual enterprise. This is done by discussing whether global and transnational cultural, socio-political, economic, and juridical challenges as well as processes of diversification, fragmentation, and transformation (significantly, de-formalisation) reinforce or weaken legal positivists¿ assumptions, claims, and methods. The themes covered include, but are not limited to, absolute and limited state sovereignty; the ¿new international legal positivism¿; Hartian legal positivism and the ¿normative positivist¿ account; the relationship between modern secularisation, social conventionalism, and meta-ontological issues of temporality in postnational jurisprudence; the social positivisation of human rights; the formation and content of jus cogens norms; feminist critique; the global and transnational migration of principles of justice and morality; the Vienna Convention on the Law of Treaties rule of interpretation; and the responsibility of transnational corporations.

This book puts forward a new theoretical concept of the juridical act, this concept is not described from the perspective of a specific national legal system, but instead represents the commonalities and ideas that stem from the Western legal tradition.

The book defines and critically discusses the following five principles: the harm principle, legal paternalism, the offense principle, legal moralism and the dignity principle of criminalization.

The notion of sovereignty plays an important part in various areas of law, such as constitutional law and international public law.

This book represents a unique resource about Stewart Macaulay one of the common law world's leading scholars of the law of contract and of the law in action approach to the study of law.

This book represents a unique resource about Stewart Macaulay one of the common law world's leading scholars of the law of contract and of the law in action approach to the study of law.

The book focuses on Robert Alexy's theory of constitutional rights. The aim of this book is to outline the central aspects of Alexy's theory as he sees them, and to further develop the principles of constitutional, fundamental, and human rights by applying a constructive criticism of his theory.

This book offers an in-depth analysis of the differences between common law and civil law systems from various theoretical perspectives. Perceived in this manner, common law and civil law differ in terms of the (main) source(s) of law;

Yet the legal concept of evidence is constantly changing, and the debate concerning the distinction between a legal concept of evidence, the ordinary concept of evidence and the concept of evidence in science is far from being settled.

This book offers an in-depth analysis of the differences between common law and civil law systems from various theoretical perspectives. Written by a global network of experts, it explores the topic against the background of a variety of legal traditions.Common law and civil law are typically presented as antagonistic players on a field claimed by diverse legal systems: the former being based on precedent set by judges in deciding cases before them; the latter being founded on a set of rules intended to govern the decisions of those applying them. Perceived in this manner, common law and civil law differ in terms of the (main) source(s) of law; who is to create them; who is (merely) to draw from them; and whether the law itself is pure each step of the way, or whether the law¿s purity may be tarnished when confronted with a set of contingent facts. These differences have deep roots in (legal) history ¿ roots that allow us to trace them back to distinct traditions.Nevertheless, it is questionable whether the divide thus depicted is as great as it may seem: international and supranational legal systems unconcerned by national peculiarities appear to level the playing field. A normative understanding of constitutions seems to grant ever-greater authority to High Court decisions based on thinly worded maxims in countries that adhere to the civil law tradition. The challenges contemporary regulation faces call for ever-more detailed statutes governing the decisions of judges in the common law tradition. These and similar observations demand a structural reassessment of the role of judges, the power of precedent, the limits of legislation and other features often thought to be so different in common and civil law systems. The book addresses this reassessment.