摘要:

Abstract. This essay argues that there are certain traits which, taken together, characterize modern legal systems, and are reflexes of modern legal culture. Modern law is rapidly changing; it is dense and ubiquitous; the basis of its legitimacy is instrumental; it stresses fundamental human rights and is strongly individualistic; lastly, the globalization of law leads to a process of convergence among legal systems. These traits also produce structural changes in legal systems, for example, an increase in the power and activism of courts.

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1994.tb00172.x

出版商:Blackwell Publishing Ltd    

年代:1994

数据来源: WILEY

摘要:

Abstract. The legal discourse of a steadily growing European legal community and universal legal harmonization is misleading since it abstracts completely from the cultural dimension of law which consist of patterns of interpretation and behavioral routines with respect to law. The article makes use of abundant literature in administrative sciences, international management research and socio‐psychological studies in Intercultural Communication in order to propose indicators for a comparison of legal cultures in the areas of European legal integration, international commercial transactions and international lawyerin

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1994.tb00173.x

出版商:Blackwell Publishing Ltd    

年代:1994

数据来源: WILEY

摘要:

Abstract. The author analyzes the relations between truth and law starting from the distinction between practical and theoretical spheres. He shows, first, how moral and legal statements and reasoning are connected with an operation of weighing and balancing different values and principles and how this operation is ultimately based on personal and intuitive preferences and feeling. The criteria developed by the theoretical sciences to define truth (coherence, consensus and pragmatic success) can only be translated into practical statements as criteria of correctness because we cannot affirm that a norm or value statement is true or false. The three criteria become interrelated indices of correctness: They are criteria for rational discourse.

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1994.tb00174.x

出版商:Blackwell Publishing Ltd    

年代:1994

数据来源: WILEY

摘要:

Abstract. The paper gives a formal reconstruction of some fundamental patterns of legal reasoning, intended to reconcile symbolic logic and argumentation theory. Legal norms are represented as unidirectional inference rules which can be combined into arguments. The value of each argument (its qualification as justified, defensible, or defeated) is determined by the importance of the rules it contains. Applicability arguments, intended to contest or support the applicability of norms, preference arguments, purporting to establish preference relations among norms, and interpretative arguments are also formalised. All those argument types are connected in a unitary model, which relates legal reasoning to the indeterminacy of legal systems, intended as the possibility to develop incompatible defensible arguments. The model is applied to permissive norms and normative hierarchies, and is implemented in a Prolog program.

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1994.tb00175.x

出版商:Blackwell Publishing Ltd    

年代:1994

数据来源: WILEY

摘要:

Abstract. According to the common thinking of continental European lawyers, a rule is invalid each and every time either it was not produced in accordance with the metarules which govern the production of rules in the system, or it is inconsistent with a “superior” (higher‐ranked) rule belonging to the same system. Thus, a better understanding of the concept of invalidity demands a careful inquiry into the various kinds of meta‐rules which govern the production of rules as well as into the various kinds of normative hierarchies. The paper is mainly devoted to such an analysis. Five different grounds for invalidity are distinguished. The analysis further shows that invalidity can affect rules as well as legal provisions and legal sources. Further, invalidity should be sharply distinguished from non‐existence (existence being a sufficient condition for rules to be applied). In most legal systems, invalid rules too are susceptible of judicial application: At least, until their invalidity is “declared” (in a constitutive way) by a competent organ (namely, a constitutional court, as far as statutory rules a

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1994.tb00176.x

出版商:Blackwell Publishing Ltd    

年代:1994

数据来源: WILEY

摘要:

Abstract. A central element of Habermas's discourse theory of law is his procedural paradigm. This includes a procedural understanding of basic rights, which is supposed to resolve both the classical tension between basic rights and democracy and the problem of collision between basic rights. I try to show that the procedural paradigm can do the first only at the cost of inadmissible idealization. Under realistic conditions one can only attempt to institutionalize the tension between basic rights and democracy as rationally as possible. Also, the problem of collision of basic rights cannot really be solved by the procedural paradigm. What can be substantiated is merely aprima faciepriority of participation in the process of public opinion‐ and will‐formation over merely private activities. Whether thisprima faciepriority becomes a definite priority in a concrete case or group of cases depends on the weight of counterarguments, as to which the procedural paradigm is sil

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1994.tb00177.x

出版商:Blackwell Publishing Ltd    

年代:1994

数据来源: WILEY

摘要:

Abstract. The author outlines limitations of the explanation capacity of Habermas's Discourse Philosophy, because of its problematic presuppositions. The main topics discussed are: (i) the legitimacy of legal systems; (ii) Habermas's concept of democracy; (iii) his theory of justice. Legitimacy cannot be based only on discourse processes, but it has to be defined by international law. Discourses in society are essential for democratic systems, but the discourses by themselves do not guarantee the optimal result as discourses may be disturbed by deceptive propaganda, by prejudices or by wrong political slogans. It is not convincing that discourse procedures guarantee impartiality and justice nor that in discourses better arguments always prevail.

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1994.tb00178.x

出版商:Blackwell Publishing Ltd    

年代:1994

数据来源: WILEY

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1994.tb00179.x

出版商:Blackwell Publishing Ltd    

年代:1994

数据来源: WILEY