摘要:

Abstract.The author summarizes the essential elements of a general theory he is developing which he calls “The Formal Character of Law.” He explains that law's formal character is a potentially major branch of legal theory that is still relatively unexplored. In his view, it is possible to identify formal attributes in (1) legal rules, (2) other basic legal constructs such as interpretive method, the principles ofstare decisis, legal reasons, and legislative and adjudicative processes, and (3) a legal system viewed as a whole. For example, a legal rule has, in varying degrees, such formal attributes as generality, definiteness, and simplicity. (Other constructs have other formal attributes.) Such attributes are formal in the sense that they apply to or accommodate highly variable content and do not prescribe or proscribe content. Of course, legal phenomena have other characteristics besides their formality. The author's main technique for developing his theory is to address a common set of questions to the varied formal attributes of (l), (2), and (3) above. Among other things, the answers to these questions further explicate how law is formal, demonstrate that law is not merely a means of serving problem‐specific policy but also serves formal values (which may sometimes trump or limit policy), treats the relations between form and content—specially how good form begets good content and bad form bad content, explores the design and implementation of appropriate formality—its “anatomy and physiology,” and analyses the “pathology” of legal form including not only the “formalistic” (the overformal), but also the “sub‐stantivistic,” and shows how the overall theory is important both jurisprudent

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1995.tb00211.x

出版商:Blackwell Publishing Ltd    

年代:1995

数据来源: WILEY

摘要:

Abstract.I argue that one can distinguish two types of unwritten legal principles as applied by courts (in Europe). On the one hand, what are called “structural principles,” which are induced, or at least pretended to be induced, from the written law. On the other hand, what are called “ideological principles,” which are not induced from the actual legal system, but refer to current dominant beliefs in society as to morals, politics or other non legal ideologies. It is argued that the distinction between structural legal principles and ideological legal principles could be an important element for the elaboration of a legal principle theory, as both these types of principles meet a different need and play a different role in legal practice. Structural legal principles primarily meet the need for a newius commune, in order to achieve the coherence and the completeness of the legal system, whereas ideological legal principles, just like the human rights, meet a revived demand for an ethical framework for

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1995.tb00212.x

出版商:Blackwell Publishing Ltd    

年代:1995

数据来源: WILEY

摘要:

Abstract.This paper is an answer to Mazzarese (1993) in which the author argues that Kelsen's normological scepticism is a consequence of his theory of legal dynamics and of his views on the relation between higher and lower norms. The author rejects this tenet and reasserts his opinion that there is an essential break between the classical Pure Theory of Law and Kelsen's late doctrine. Therefore an inquiry is justified whether the theses and concepts of the classical Pure Theory are compatible with normological scepticism in Kelsen (1979). Mazzarese's comments on neo‐institutionalist views on legal validity are based on a misinterpretation of this conceptio

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1995.tb00213.x

出版商:Blackwell Publishing Ltd    

年代:1995

数据来源: WILEY

摘要:

Abstract.The author argues that in order to maintain, with the later Kelsen, that particular norms are not deducible from general norms, it is unnecessary to deny (1) that norms are propositional, (2) that norms have truth value, (3) that there are normative facts, or (4) that norms fall within the compass of logic. It is claimed that general norms, like many generalizations in science, are not, typically, unrestricted universal generalizations, but generalizations of a different kind, which have sometimes been callednormic generalizations. Normic generalizations may have truth value and describe facts; and there is no obvious reason for thinking that they fall outside the compass of logic. Yet they do not deductively imply the instances which fall under them. Exceptions to a generalization of this sort need not constitute falsifying instances; in some cases, at least, they serve rather to qualify the scope or power of the generalization. The logic of such generalizations is thus not deductive. Granting that general norms are typically of this kind, we may accept Kelsen's conclusion about the non‐deducibility of particular from general norms without accepting the grounds upon which he accounted for this fac

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1995.tb00214.x

出版商:Blackwell Publishing Ltd    

年代:1995

数据来源: WILEY

摘要:

Abstract.Sovereignty may be threatened by obligations and relations with other nations, states or powers from either an “internal” or “external” perspective. In this paper, I argue that these obligations and relationships may be compatible with a state's sovereignty if we understand the proper nature of authoritative relationships. This requires a model of “rational authority” which places emphasis on the first‐person perspective of the subjects

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1995.tb00215.x

出版商:Blackwell Publishing Ltd    

年代:1995

数据来源: WILEY

摘要:

Abstract.Kant's writings on international law and especially hisToward Perpetual Peacehave been interpreted both in a “statist” and a “cosmopolitan” manner. In this article it is argued that these interpretations stem from an ambiguity in those writings. In the course of proposing a resolution of this ambiguity, the first question to be examined is the extent to which war forms a part of human history and of human nature. Secondly, Kant's arguments against the realistic position and the conditions for a lasting peace are presented. An interpretation is then offered both of the proposed league of nations and of the situation that exists when such a league is still absent. According to the interpretation offered here, Kant's writings fit partly within the tradition of the “j

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1995.tb00216.x

出版商:Blackwell Publishing Ltd    

年代:1995

数据来源: WILEY

摘要:

Abstract.This paper seeks to suggest a jurisprudential grounding for the European Community, and seeks to do so by using a specifically Kantian philosophy of law. Kant's observations on the nature of transnational orders, like so much of his political theory, have tended to be overlooked. To do so is to overlook one of the great political and jurisprudential treasures in modern western thought. It will be suggested that a proper understanding of a Kantian normative order, and the application of such a model to the European Community will serve to dispel much of the confusion and sometimes near histrionic commentaries which have characterised recent attempts to understand the jurisprudence of the Community.

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1995.tb00217.x

出版商:Blackwell Publishing Ltd    

年代:1995

数据来源: WILEY

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1995.tb00218.x

出版商:Blackwell Publishing Ltd    

年代:1995

数据来源: WILEY

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1995.tb00219.x

出版商:Blackwell Publishing Ltd    

年代:1995

数据来源: WILEY

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1995.tb00220.x

出版商:Blackwell Publishing Ltd    

年代:1995

数据来源: WILEY