摘要:

Abstract.The author characterizes the model of rationality devised by critical rationalism in opposition to the classic model of rationality and as an alternative to this. He illustrates and criticizes the trichotomous theory of knowledge which, going back to Max Scheler, is received in a secularized version by Habermas and Apel, also under the influence of the hermeneutic tradition of Heidegger and Gadamer and of the so‐called “critical theory” of Max Horkheimer and Theodor Adorno. The author criticizes historicism as it expects to be an alternative to naturalism and not to make use of the method based on scientific laws. The author proposes as an example of technological social science the model developed in economics starting from Adam Smith. With regard to legal theories, natural law is rejected because of its sociomorphic cosmology. It is proposed that legal science as social technology has two parts. One part aims at efficient interpretations of valid law (for the space‐time region concerned) and a second part aims at the construction of efficient norms for the modification of valid law by leg

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1988.tb00001.x

出版商:Blackwell Publishing Ltd    

年代:1988

数据来源: WILEY

摘要:

Abstract.The author begins by sketching the characteristics or elements of every tradition. Some reasons are then suggested for the propensity of so many authors to contrast statutes with other, allegedly more traditional kinds of law. However, it is argued that statutes are deeply embedded, along with customary and judge‐made law, in the highly traditional practices of law and that this matters much more than is commonly suspected. The thesis being defended here is not merely that law includes traditions along with rules, principles, maxims, and so on, but rather that legal systems should be understood as traditions, albeit highly complex ones. Not only are ancient legal systems (the Talmudic, for example) held to be traditional; modem legal positive orders are viewed as being traditional too. Finally, the concept of “communities of interpretation” is applied to the contemporary posited statutes which are believed by many to be a distinguishing feature of modem legal sy

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1988.tb00002.x

出版商:Blackwell Publishing Ltd    

年代:1988

数据来源: WILEY

摘要:

Abstract.This essay explores the implications of H.L.A. Hart's rule of recognition for identifying ultimate standards of law in the United States. The effort reveals that these standards are much more complex than is commonly supposed. Not all of the federal constitution is part of the “ultimate” rule of recognition, and much else must be included in that rule. The analysis uncovers many possibilities for how ultimate standards relate to derivative standards that are omitted or barely hinted at in Hart's account. Some of these possibilities pose genuine difficulty for Hart's basic theory and help illuminate the relation of conventional and normative elements in an adequate account of law, a subject addressed in the final section of the es

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1988.tb00003.x

出版商:Blackwell Publishing Ltd    

年代:1988

数据来源: WILEY

摘要:

Abstract.Traditionally legal theorists, whenever engaged in controversy, have agreed on one point: legal norms are par excellence rules which impose obligations. The author examines this assumption, which from another perspective (that of constitutional law, for instance) appears less obvious. In fact, constitutional rules are commoniy empowering norms, norms which do not create duties but powers. To this objection many theorists would reply that empowering rules are incomplete and that they are to be understood as parts of duty‐creating rules. A different position from this traditional stance is that defended in Kelsen's later writings, according to which the fundamental type of norm is the empowering norm. The author discusses Kelsen's three theories on the “ideal form” or structure of the legal norm, with special attention to the third of these, the empowerment t

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1988.tb00004.x

出版商:Blackwell Publishing Ltd    

年代:1988

数据来源: WILEY

摘要:

Abstract.A restatement of an institutionalist theory of law is attempted with particular reference to legal reasoning and legal rights. Use is made of Ota Weinberger's concept of “practical information”, focusing on both its momentary and diachronic aspects. Momentary practical information corresponds to the need to know which conduct is required of us at a given moment. The diachronic practical information becomes relevant whenever we wish to stabilize the practical information and to reduce the likelihood of change regarding our ways of acting. Furthermore, the momentary information is given sense only against the background of the diachronic one. Among the different types of diachronic practical information particular importance is ascribed to legal “institutions” such as contracts and rights. Legal “institutions” are conceived as founded on various sets of rules. Rules may then increase the number of facts in the world: those special kinds of facts which are represented by socia

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1988.tb00005.x

出版商:Blackwell Publishing Ltd    

年代:1988

数据来源: WILEY

摘要:

Abstract.The author questions himself about what is known as “the paradox of blackmail,” that is, the fact that blackmail is the result of the combination of two ways of behaving which are often both lawful if taken individually, but unlawful once they are connected. The author also examines whether the harm principle typical of liberal orders provides the justification (the rationale) for the assumption of blackmail as a crime, or whether it is instead necessary to turn to another justificatory basis: the exploitation principle. However, as this principle leads to legal moralism, it opposes a liberal ethics. Thus, one is faced with the dilemma of either accepting the harm principle thus decriminalizing blackmail, or accepting the exploitation principle and going against principles of liberalism. To escape this dilemma the author distinguishes between various types (five categories) of blackmail, concluding that only non‐paradoxical types fit the common‐sense expectation of criminal

ISSN:0952-1917    

DOI:10.1111/j.1467-9337.1988.tb00006.x

出版商:Blackwell Publishing Ltd    

年代:1988

数据来源: WILEY