摘要:

AbstractPopular sovereignty and human rights are the modern pillars of legal legitimacy and political power. Liberal and republican thought, however, tend to interpret the two notions from different perspectives: either as moral principles, emphasizing the self‐legislation and autonomy of individuals, or as ethical values, stressing the self‐realization of the political community. Adhering to his theory of communicative action, the author brings the two principles together in a non‐competitive relation. Here the connection between popular sovereignty and human rights is given by the procedures of a discursive process of opinion‐ and will‐formation. Theoretically, the institutionalization of this process through law leads to a normative model of contemporary democracy, which is based on the substance of human rights as a formal condition for deliberative p

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1994.tb00162.x

出版商:Blackwell Publishing Ltd    

年代:1994

数据来源: WILEY

摘要:

AbstractThe author deals with theoretical connections between legal positivism and communitarianism. Such connections prove to be relevant not only for a better understanding of these two trends of thought but also in order to throw light on important philosophical issues like human rights and democracy. Deep links are traced and recognized between the so‐called positivism “in action,” and especially its ideological thesis, and communitari

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1994.tb00163.x

出版商:Blackwell Publishing Ltd    

年代:1994

数据来源: WILEY

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1994.tb00164.x

出版商:Blackwell Publishing Ltd    

年代:1994

数据来源: WILEY

摘要:

AbstractThe author criticizes the argument in Dyzenhaus (1991) that a study of South African judicial decisions establishes the superiority of Dworkinian anti‐positivism over legal positivism. Among the claims criticized are: (1) Positivism and anti‐positivism each imply a specific theory of judicial duty, and the decisions of South African judges are explained by their adherence to one or the other of these theories; (2) resistance to South African government policy was morally required of judges; (3) the only theory which supports this resistance (anti‐positivism) is therefore the correct one; (4) the cases establish that judges do not have discretion in hard cases; (5) Dworkin's theory does not imply that South African judges are required to apply the wicked principles embedded in their legal system; (6) positivism involves a pragmatic contradi

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1994.tb00165.x

出版商:Blackwell Publishing Ltd    

年代:1994

数据来源: WILEY

摘要:

AbstractIn his bookHard Cases in Wicked Legal SystemsDavid Dyzenhaus aims to provide a cogent refutation of legal positivism, and thus to settle a very old dispute in jurisprudence. His claim is that the consequences for practice and for morality if judges adopt positivist ideas in a wicked legal system are unacceptable. He discusses the South African legal system as a case in point. I argue that this claim is not secured. Dyzenhaus has three arguments for his view. The first is that positivism cannot account for legal principles, and legal principles are the key source of morally acceptable adjudication. I show that his argument does not go through for sophisticated positivist accounts of “principles” such as those of J. Raz and D. N. MacCormick. Dyzenhaus's second argument claims to find a pragmatic contradiction in positivism, between the belief in judicial discretion and the belief in a commitment to legislative sources as binding fact. I argue that there is no such commitment in a form that supports Dyzenhaus's theory. His final argument is that wicked legal systems are contrary to the very idea of law and legality. I argue that a strong doctrine of deference to legislative authority cannot be bad in itself: It can only be bad relative to a certain content to legislation. Thus Dyzenhaus's claim begs the question against positiv

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1994.tb00166.x

出版商:Blackwell Publishing Ltd    

年代:1994

数据来源: WILEY

摘要:

AbstractThis essay argues for a conception of law as a normative practice, a conception which departs from traditional, particularly positivist, conceptions. It is argued that Dyzenhaus's book (Dyzenhaus 1991), with its fascinating case study of unjust judicial decisions in South Africa, makes a compelling argument for such a conception. However, the essay takes issue with Dyzenhaus for romanticising the liberal tradition, and inflating the power of law and legal theory. Nonetheless, the essay agrees that positivist accounts tend to downplay the emancipatory promise of law, and ends with some remarks about promise.

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1994.tb00167.x

出版商:Blackwell Publishing Ltd    

年代:1994

数据来源: WILEY

摘要:

AbstractIn this paper, the author responds to the claim that his critique of legal positivism, based on an account of adjudication in South Ahica, misses its target because it ignores, first, the positivist thesis of judicial discretion and, secondly, the fact that positivism offers no account of judicial obligation. He argues that these theses expose a tension in positivism between its commitments to liberal individualism and to the supremacy of positive law, a tension which can be resolved only by situating positivism in its true context, the Hobbesian argument for the legitimacy of law. Following Dworkin, he advocates the practice‐oriented common law tradition, one that makes the legitimacy of law a matter of standards already implicit in law which are best revealed in adjudicatio

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1994.tb00168.x

出版商:Blackwell Publishing Ltd    

年代:1994

数据来源: WILEY

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1994.tb00169.x

出版商:Blackwell Publishing Ltd    

年代:1994

数据来源: WILEY

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1994.tb00170.x

出版商:Blackwell Publishing Ltd    

年代:1994

数据来源: WILEY

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1994.tb00171.x

出版商:Blackwell Publishing Ltd    

年代:1994

数据来源: WILEY