摘要:

Abstract.The problem of the relationship between “reason” and “law” has two different meanings depending on whether the first or the second of the two terms is considered to be the most important one. These two different meanings are revealed in the expressions “law of reason” and “legal reason,” respectively. In the first expression, “reason” is meant in its strong sense, that is, the faculty of grasping the essence of things, while in the second, “reason” is meant in a weak sense, the ability to reason (calculate, infer, discuss). “Law of reason” and “legal reason” correspond to two different moments of the legal universe, the creation and, respectively, the application of law. Strong reason is that which discovers the rules to be obeyed, while weak reason is that which applies rules to an actual case. The first is legislating reason, while the second is judging reason. The main topic of the debate from the Greeks to Kant was that of legislating reason. Nowadays, instead, scholars in the field are interested in judging reason. Historicism and positivism mark the end of faith in the existence of rules which are objectively just, and which may be recognized by human reason. By now we have learned to do without the eternal truths in the knowledge of the world. However painful it may be, we are forced to resign ourselves to do without ev

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1988.tb00007.x

出版商:Blackwell Publishing Ltd    

年代:1988

数据来源: WILEY

摘要:

Abstract.The author distinguishes between scientific and prudential reason (practical wisdom) in Aristotle with reference to the nature of the principles assumed as premises, and to the method of inference. In the history of thought these two models of reason are elieved not only to be proper to science and, respectively, ethics, but also, at times, to be the scientific model proper to ethics (for example, in natural law doctrines) and the prudential model proper to science. Mixed models are also given in the history of thought: scientific‐prudential (for example, in Thomas Aquinas) and prudential‐scientific. Furthermore, some aspects of the relationship between authority and reason are exami

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1988.tb00008.x

出版商:Blackwell Publishing Ltd    

年代:1988

数据来源: WILEY

摘要:

Abstract.Moral statements are related to some ought‐ and good‐making facts. If at least one of these facts exists then it is reasonable that an action in question isprima faciegood and obligatory. If all of these facts take place, then it is reasonable that the action is definitively good and obligatory. Yet, moral reasoning is relatively uncertain. The law is more “fixed”. Legal interpretatory statements ought to express a compromise between the literal sense of the law and moral considerations. They can be to a high degree both coherent and accepted. One may emotionally reject them but most people have a disposition to endorse a coherent and commonly accepted value

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1988.tb00009.x

出版商:Blackwell Publishing Ltd    

年代:1988

数据来源: WILEY

摘要:

Abstract.Law has variously been described as part of empirical social reality or as a set of normative prescriptions defining desirable conduct. The author takes the view that a legal system normally represents an amalgam of “is” and “ought” elements. It is operative in part as a living law of actual human conduct, in another part as an instrumentality for transforming unfulfilled social ideals or goals into reality. A different blending of “is” and “ought” factors often occurs in the judicial process, when an application of given legal norms is combined with some injection of law deemed desirabl

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1988.tb00010.x

出版商:Blackwell Publishing Ltd    

年代:1988

数据来源: WILEY

摘要:

Abstract.The author aims at defining the borderlines of the concept “rule of law.” This has been often inflated to encompass several dimensions of an ideal legal order. The author on the contrary believes that the “rule of law” ought to be a “thin” ideal. As a matter of fact, when the “rule of law” signifies almost any dimension of an ideal legal order, it comes to stand for nothing essential in particular. Deflation is then advocated for the rehabilitation of the normative content of the “rule of law.” This means that the “rule of law” should be defined as a concept covering only some well delimited dimensions

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1988.tb00011.x

出版商:Blackwell Publishing Ltd    

年代:1988

数据来源: WILEY

摘要:

Abstract.The author analyses Ronald Dworkin's ideas about legal theory and legal philosophy, with particular regard to metatheoretical and methodological problems. He focuses on the questions of the function and the object of jurisprudence, and on those of the content and method of argumentation of jurisprudence. According to the author, Dworkin's theory is a normative theory, an ideology referred to the judicial practice. Although judges really make law, one can deny that they do. This strategy is the one judges traditionally employ when they say that they are merely applying the law‐giver's intentions or fundamental principles that existed long before the case they have to decide. It is that discourse, not rights, that Dworkin takes seriousl

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1988.tb00012.x

出版商:Blackwell Publishing Ltd    

年代:1988

数据来源: WILEY

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1988.tb00013.x

出版商:Blackwell Publishing Ltd    

年代:1988

数据来源: WILEY

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1988.tb00014.x

出版商:Blackwell Publishing Ltd    

年代:1988

数据来源: WILEY