摘要:

Abstract.Any value statement belongs to a certain value code shared, to a certain degree, by a number of people. Is the value code itself relative or not? To solve this problem, one must assume that universal value statements and principles always have aprima‐faciecharacter.Prima‐facievalue propositions not onlyclaimuniversality but can also be understood asuniversally validin the following sense. First, their validity does not depend on an individual's free preferences. Second, although they are culture‐bound, there is something all cultures must have in common. But suchprima‐faciepropositions do not logically imply a moral judgement in any particular case. They are merely a starting point of an evaluation procedure, i.e., of weighing and balancing, nothing more. On the other hand, thefinal(contextual, all things considered) evaluations are necessarily relative to a certain culture and, indeed, to individual preferences. When claiming universality of values, people see the first side of the problem. When endorsing relativism, they see only the seco

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1996.tb00249.x

出版商:Blackwell Publishing Ltd    

年代:1996

数据来源: WILEY

摘要:

Abstract.The main purpose of this paper is to explore the role played by logic in the legal domain. In the traditional conception which underlies the movement of codification, judges are able to find in the legal system (the Master System) a unique answer for every legal problem. This entails its completeness, consistency and the possibility of deriving from it the contents of all judicial decisions. Although the ideal model of this conception is supported by important theoretical and political ideals, it has significant shortcomings. The elements of normative systems (Master Systems) are “norms” and not mere “norm‐formulations.” A “norm” is the meaning attributed to normative linguistic expressions. The set of all normative expressions, such as statutes, codes, etc. forms what is called the Master Book. One of the main problems for the ideal model is the identification of a normative system behind the Master Book. Interpretative arguments are the tools designed to solve these problems. Although the requirements of the model are not totally fulfilled in actual practice, it remains as an effective ideal rational goal behind legal activities linked to adjudication and most theoretical appr

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1996.tb00250.x

出版商:Blackwell Publishing Ltd    

年代:1996

数据来源: WILEY

摘要:

Abstract.My article is about legal interpretation, but not about the question: how to interpret the law. Rather its aim is to make us consider seriously the question: Why is interpretation central to legal practices? After all not all normative practices assign interpretation such a central role. In this regard the law contrasts with morality. The reason for the contrast has to do with the status of sources in the law. There are no “moral sources” while legal sources are central to the law. Legal interpretation is primarily—I will suggest—the interpretation not of the law, but of its sources. To understand why interpretation is central to legal practices requires understanding the role of sources in the law: the reasons for having them, and hence also the ways in which they should be treated. I will show how reflections about these topics connect with some traditional jurisprudential puzzles, such as the relations between law and morality. Are there gaps in the law? Is the law or its interpretation objective or sub

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1996.tb00251.x

出版商:Blackwell Publishing Ltd    

年代:1996

数据来源: WILEY

摘要:

Abstract.The author discusses a number of issues in the theory of legal sources. The first topic is whether sources should be conceived of as acts or texts. The alternatives are connected with two competing theories of legal interpretation (viz., the cognitive theory and the sceptical theory), which entail different concepts of legal rules and law‐making. The second topic is whether a “formal” or a “material” criterion of recognition of sources should be preferred. The third section is devoted to the analysis of rules of change. Four theories of rules of change are discussed, and five kinds of such rules are distinguished. The fourth section concerns judicial law‐making, with special reference to the creation of new legal rules by constituti

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1996.tb00252.x

出版商:Blackwell Publishing Ltd    

年代:1996

数据来源: WILEY

摘要:

Abstract.This paper seeks to establish a connection between the existence of a legal system and the ideal of the rule of law. Its point of departure is the phenomenon of a transitional regime that is attempting to restore or institute the rule of law. Lon Fuller's formulation of the canons of the rule of law as an internal morality of law is expounded as well as his notion of legal pathology as symptomatic of departure from the canons' requirements. The existence of a legal system, it is argued, is a matter of degree, covariant with the degree to which the rule of law is realized. Problems inherent to the implementation of the rule of law are examined, such as the effect of the passage of time on reasonable expectations. While legal pathology is always a matter of degree, police states are shown to suffer seriously from it. Among the examples discussed are Nazi Germany and Communist East Germany, though it is granted that there are moral differences between them. Finally, a response is made to some contemporary critiques of the rule of law.

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1996.tb00253.x

出版商:Blackwell Publishing Ltd    

年代:1996

数据来源: WILEY

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1996.tb00254.x

出版商:Blackwell Publishing Ltd    

年代:1996

数据来源: WILEY

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1996.tb00255.x

出版商:Blackwell Publishing Ltd    

年代:1996

数据来源: WILEY

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1996.tb00256.x

出版商:Blackwell Publishing Ltd    

年代:1996

数据来源: WILEY

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1996.tb00257.x

出版商:Blackwell Publishing Ltd    

年代:1996

数据来源: WILEY