摘要:

Abstract.General theory of law (general jurisprudence,allgemeine Rechtslehre) has often claimed to deal with general or universal concepts, i.e., concepts which are deemed to be common to any legal system whatsoever. At any rate, this is the classic determination of such a field of study as provided by John Austin in the nineteenth century—a determination, however, which deserves careful analysis. In what sense, indeed, can one assert that some legal concepts are common to different legal systems? And, above all, in what sense can one assert that some concepts are common to different languages and cultures? My paper sets out to discuss such questions—although, obviously, they are too complicated to be answered in a single paper. The first section reconstructs the Austinian argument for general jurisprudence by placing it in its historical context. The second section tries to apply to legal concepts some suggestions derived from the contemporary debate on conceptual relativism. The third section, returning to the Austinian problem, comes to the following conclusion: Even if conceptual relativism were true and there were no general or universal legal concepts, this would not invalidate in any way the didactic and scientific value of (general) theory of

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1996.tb00223.x

出版商:Blackwell Publishing Ltd    

年代:1996

数据来源: WILEY

摘要:

Abstract.It is argued that accepting that there are human rights, or that there are categorically binding requirements of any kind on action, logically requires accepting thePGC (Principle of Generic Consistency) as the supreme criterion of practical reasonableness.Consequently,alllegal systems that recognise human rights (hence, the English legal system),allwho view law as a matter of obligation, andallwho consider that there are categorically binding requirements on action, must take thePGCto be a necessary criterion of legal validity. Conventions on human rights must, as conventions onhuman rights, be interpreted to conform with thePGC.

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1996.tb00224.x

出版商:Blackwell Publishing Ltd    

年代:1996

数据来源: WILEY

摘要:

Abstract.Although the Charter of the United Nations embodied an unresolved tension between state sovereignty and the inviolability of human rights, the fall of the Berlin Wall seemed to herald universal acceptance of the legitimacy of international concern for the protection of human rights. Since that time, however, the sovereignty of states has been pushed with renewed vigour under the guise of cultural sovereignty. Three examples of the role of cultural sovereignty in the international human rights sphere are proposed to demonstrate that the real interest of states is not the protection of cultural identity, but non‐interference, supremacy and control. The paper identifies cultural sovereignty with cultural relativism and argues that the ideology of relativism, combined with the inadequacies of legal positivism, have significantly harmed the efficacy and character of the international human rights regim

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1996.tb00225.x

出版商:Blackwell Publishing Ltd    

年代:1996

数据来源: WILEY

摘要:

Abstract.The universalism of rights is a corollary to the individualistic semantics of the Enlightenment and the French Revolution. Paradoxically, the grounds of universalism were those legal and political concepts that theoretically describe the 19th century nation‐state (such as sovereignty of the people, citizenship, rights, and the like). All these concepts of the liberal tradition construct the nation‐state on the presupposition of a highly homogeneous political community of rational subjects, whose homogeneity consists in the very social, economic, political and sexual conditions of their rationality. This kind of legal and political semantics is no longer adequate to characterize contemporary society which is a multicultural, highly in‐homogeneous world‐society. It no longer incorporates an ethic which is able to enforce universal leading values for human

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1996.tb00226.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.tb00227.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.tb00228.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.tb00229.x

出版商:Blackwell Publishing Ltd    

年代:1996

数据来源: WILEY