摘要:

Abstract.The first part of this article contains (i) considerations as to the relationship between jurisprudence and legal dogmatics, legal philosophy, and sociology of law; (ii) considerations about the status of jurisprudence both as a meta‐ and an object‐theory. These lead to the suggestion that jurisprudence should be defined as a general juristic theory of law and legal science. In the second part, the character and elements of this definition are explained systematically. The article's main thesis is that jurisprudence is not distinguished from legal philosophy and sociology of law by its subject or its method, but by the specifically juristic research aspect or perspective it is based u

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1990.tb00047.x

出版商:Blackwell Publishing Ltd    

年代:1990

数据来源: WILEY

摘要:

Abstract.The rule of law demands that the state's coercive power be used only according to settled general laws, applied impersonally. But an individualist theory of legal inter pretation cannot provide the shared understanding required. Gadamer appeals to the practical wisdom of judges and lawyers, who will agree on how to apply law to new cases. But this account is adequate only for very cohesive societies. Dworkin's account rests on propositional knowledge of a supposed best interpretation of an entire legal system. But even if such a best interpretation is possible in theory, this possibility does not provide shared understandings in the social world.

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1990.tb00048.x

出版商:Blackwell Publishing Ltd    

年代:1990

数据来源: WILEY

摘要:

Abstract.Some important ideas in Kelsen's Pure Theory of Law can be traced back to Kantian tradition, which has been very influential in Kelsen's thought, particularly in his early period. Among them we find the distinction between two radically different worlds (the world of facts and the world of norms), the normativity of legal science and the idea of validity as a binding force, based on the famous doctrine of the basic norm. These tenets and, especially, the use of a normative concept of validity prove to be incompatible with Kelsen's positivistic programme of a value‐free legal science. The science of law cannot state that legal norms are obligatory or binding without trespassing the limits of Kelsen's ideal of a legal science; on the other hand, it is possible to define the concept of a legal system without resorting to the basic norm. So, if Kelsen is to be regarded as a consequent positivist, the Kantian ingredients of his theory must be rejected and the descriptive concept of validity as membership must be substituted for the normative notion of validity as a binding forc

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1990.tb00049.x

出版商:Blackwell Publishing Ltd    

年代:1990

数据来源: WILEY

摘要:

Abstract.Between the two horns of Jørgensen's dilemma, the authors opt for that according to which logic deals not only with truth and falsity but also with those concepts not possessing this semantic reference. Notwithstanding the “descriptive” prejudice, deontic logic has gained validity among modal logics. The technical foundation proposed consists in an abstract characterization of logical consequence. By identifying in the abstract notion of consequence the primitive from which to begin, it is possible to define the connectives ‐ even those of obligation ‐ by means of the rules of introduction or elimination in a context of de

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1990.tb00050.x

出版商:Blackwell Publishing Ltd    

年代:1990

数据来源: WILEY

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1990.tb00051.x

出版商:Blackwell Publishing Ltd    

年代:1990

数据来源: WILEY

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1990.tb00052.x

出版商:Blackwell Publishing Ltd    

年代:1990

数据来源: WILEY

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1990.tb00053.x

出版商:Blackwell Publishing Ltd    

年代:1990

数据来源: WILEY

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1990.tb00054.x

出版商:Blackwell Publishing Ltd    

年代:1990

数据来源: WILEY

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1990.tb00055.x

出版商:Blackwell Publishing Ltd    

年代:1990

数据来源: WILEY

摘要:

Abstract.The author singles out various conceptions of rationality used in practical legal discourse: formal and substantive rationality, instrumental goal‐ and means‐rationality, communicative rationality. Practical rationality is expressed in decisions justified by epistemic and axiological premises according to the rules of justificatory reasoning. Five levels of analysis of this justification are identified. Rules, principles and evaluations are used as justifying arguments and their characteristics determine the dimensions of rationality of decision depending on the features of rules, various conceptions of principles, and kinds of relativisation of evaluations. The dimensions of legal rationality depend mainly on three singled out conceptions of rationality, i.e., formal rationality dealing with the deep structure of justification, instrumentally oriented rationality as content of justifiability, and communicative rationality linked with the pragmatics of human interaction. Legitimacy, according to the presented analysis, appears as a subclass of external justification dealing with axiological premisses in terms of instrumental rationality and/or communicative rational

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1990.tb00074.x

出版商:Blackwell Publishing Ltd    

年代:1990

数据来源: WILEY