The Concept of Law

1950 ◽  
Vol 10 (3) ◽  
pp. 423-431
Author(s):  
B. E. King

Twenty years ago Mr. Cairns set himself the task of looking at law from three points of view, that of the social sciences, that of logic and the empirical sciences, and that of philosophy. Law and the Social Sciences was published in 1935, the Theory of Legal Science in 1941. The volume under review completes the trilogy. The object of all these volumes is the same—‘To construct the foundation of a theory of law which is the necessary antecedeat of a possible jurisprudence’. All those who have come under the spell of Mr. Cairns' stimulating thought will look forward with the greatest interest to the application and expansion of his conclusions which is now promised us in a projected final work, The Elements of Legal Theory.

1938 ◽  
Vol 5 (2) ◽  
pp. 189-203 ◽  
Author(s):  
George A. Lundberg

Author(s):  
Philipp Reimer

»L’ÉTAT, C’EST LE DROIT!« – SOBRE A ATUALIDADE DA TEORIA DO ESTADO DE HANS KELSEN EM FACE DA METAMORFOSE DO PODER ESTATAL*  »L’ÉTAT, C’EST LE DROIT!« - ZUR AKTUALITÄT DER STAATSLEHRE HANS KELSENS IM ANGESICHT SICH WANDELNDER STAATSGEWALT  »L’ÉTAT, C’EST LE DROIT!« - THE CURRENT IMPORTANCE OF HANS KELSEN'S STATE DOCTRINE IN LIGHT OF THE STATE POWER CHANGES   Philipp Reimer**  RESUMO: Confrontada com evidentes mutações na estruturação de instituições e atividades estatais, a teoria do direito pode nos dizer que aspectos deste processo de metamorfose devem ser considerados pelos estudos jurídicos – bem como quais aspectos não precisam ser levados em conta. Fazendo uso de uma abordagem kelseniana, este artigo demonstra como a teoria do direito (compreendida como disciplina normativa) não enfrenta quaisquer dificuldades ao lidar com fenômenos da ordem do dia tais quais „soft law“, „governo de múltiplos níveis“ ou „pluralismo jurídico“. A distinção entre normativo e empírico é a chave interpretativa, aqui, de tal forma que a investigação desta última esfera pertence ao domínio das ciências sociais e não da teoria do direito. PALAVRAS-CHAVE: Identidade entre Estado e direito. Hans Kelsen. Teoria pura do direito. Teoria normativa. Pluralismo jurídico. ABSTRACT: When facing eminent change of the way government institutions and activities are structured, legal theory can tell us in what respects legal scholarship needs to take account of such change - and also, in what respects is does not. Using a Kelsenian approach, this paper shows how legal theory (understood as a normative discipline) has no difficulty in coping with modern-day phenomena such as "soft law", "multi-level government", and "legal pluralism". The distinction of the normative and the empirical is key here, where the study of the latter falls into the domain of the social sciences, not legal theory. KEYWORDS: Identity of legal order and state. Hans Kelsen. Pure theory of law. Normative theory. Legal pluralism. SUMÁRIO: 1 Transformação do Estado – de que Estado? 1.1 Um Estado, duas dimensões, três elementos? 1.2 Diferenciação dos conceitos de Estado. 1.3 Conceito teórico-jurídico de Estado e transformação do Estado. 2 Transformações do conteúdo do direito. 2.1 Autorregulação. 2.2 »Soft law«. 3 Transformação da estrutura do direito: Substituição do Estado. 3.1 »Sistemas de múltiplos níveis« e »pluralismo jurídico« como (aparente) desafio a um teoria do direito centrada no Estado. 3.1.1 »Sistemas de múltiplos níveis«. 3.1.2 »Pluralismo jurídico«. 3.2 Substituição, não transformação do Estado. 3.2.1 A antiquada teoria do direito centrada no Estado como quimera. 3.2.2 A necessária unidade da perspectiva jurídica da ciência normativa. 3.2.2.1 Derrogação apenas internamente a uma ordem jurídica. 3.2.2.2 Construção do direito internacional público e do direito europeu. 3.2.3 O caráter arbitrário da escolha do ponto de partida da abordagem jurídica. Conclusão – perspectivas científico-normativas e científico-sociais sobre a “transformação do Estado”. Referências Bibliográficas. * Publicação original: REIMER, Philipp. »L’État, c’est le droit!« - Zur Aktualität der Staatslehre Hans Kelsens im Angesicht sich wandelnder Staatsgewalt. In: HESCHL, Lisa et seq (Eds.). L'État, c'est quoi? Staatsgewalt im Wandel. 54. Assistententagung Öffentliches Recht. Graz: Helbing & Lichtenhahn, 2014, p. 37-57. Traduzido por Rodrigo Garcia Cadore, doutorando em Teoria do Direito e Direito Público pela Universidade de Freiburg (Albert-Ludwigs-Universität Freiburg), Alemanha, com autorização do autor.** Livre-docente em Direito Público e Teoria do Direito pela Universidade de Freiburg (Albert-Ludwigs-Universität Freiburg), Alemanha. Professor Privatdozent na Faculdade de Direito da Universidade de Mainz (Johannes Gutenberg Universität Mainz), Alemanha.


Lex Russica ◽  
2020 ◽  
Vol 1 (1) ◽  
pp. 88-117
Author(s):  
Yu. A. Vedeneev

The law exists in the form of institutions and in the form of representations of institutions, since the representation of something (phenomenon) has a conceptual dimension in the representation of something (concept). Representations of law and representations of law are two aspects of the expression and manifestation of the general legal reality. This, in fact, leads to a fundamental dilemma in determining the subject of legal science. This is the science of law or the science of legal science. Given that the concept of law is a theory of law developed into a system of definitions, the practical language of law finds itself in the theoretical language of jurisprudence, and vice versa. The languages in which the law operates, and the languages in which the phenomenon of law is interpreted, constitute the general object and subject of jurisprudence.Jurisprudence is a conceptual part of legal reality, both an object and a subject of legal science. The evolution of jurisprudence in the cultural-historical logic of changes in its subject and methods is the basis for changes in its disciplinary structure and connections in the general system of social and political sciences. Each cultural and historical epoch of the existence of law corresponds to its own grammar of law and its own epistemology of law, that is, its own analytical language and disciplinary format of legal knowledge. The law exists in the definitions of its concept. The concept of law has both an ontological and epistemological status. One thinks of law because it exists, and one understands the law because it is defined. Each tradition of understanding the law can be conceptually seen in the phenomenon of law that other traditions of legal understanding do not see or do not notice. The history of the development of the concept of law (conceptualization of law) contains the history of the development of legal institutions (institutionalization of law). Both components of legal reality — objective and subjective grounds and conditions for the emergence and development of the phenomenon of law live in the framework definitions of their social culture, its language and discourse. That is, they live in historical forms of awareness and understanding of one’s own law — from the law indicated in rituals, myths, signs and symbols, to the law indicated in canonical texts, doctrines and concepts; from the law of disciplinary society to the law of network communities; from the law of political domination and bureaucratic management to the law of civil communications and network agreements.


2010 ◽  
Vol 23 (1) ◽  
pp. 249-253
Author(s):  
Philip Soper

Making the perspective of insiders critical to a theory of law, including particularly those who accept and enforce legal standards, has been the hallmark of corrections to John Austin’s theory at least since Hart’s The Concept of Law. Burge-Hendrix’s book continues this tradition and brings its insights to bear on the particular dispute between inclusive and exclusive positivists. That being said, the project has always seemed to me to be incomplete. If the participant’s perspective is indeed the critical one, then the recognition that participants make normative claims about the concept of law itself (not just about their legal standards) surely deserves its own proper place in a legal theory. Those normative claims about law range, at the very least, from claims that coercion is (morally) justified to claims of (moral) authority. If these claims turn out to be false in cases of laws that are extremely unjust, then either they are not “laws” at all according to the participants’ own views(in which case the natural law theorists are correct.) Or, participants will have to give up their normative claims about law and recognize that all that counts is pedigree and the power to coerce. In that case, we will be back to Austin’s coercive account of law, and much of the dispute between exclusive and inclusive positivists will be irrelevant.


2020 ◽  
Vol 24 (3) ◽  
pp. 530-546
Author(s):  
Erzat Z. Bekbaev

The relevance of the problem of choosing the object of study in the theory of law is determined by the need to tackle the debatable issue of pluralism in understanding of law. It is noted that one of the reasons for theoretical and legal pluralism on the concept of law is the lack of uniform criteria for identifying the object of study in the general theory of law. The situation with the concept of law in legal science, including with the pluralism of opinions, is considered largely as a result of the scientists and practitioners attitude described as first understand the law and then create a single concept of law. The fundamental research carried out in legal science and wide discussions on the concept of law are taken as positive; one of the parameters is the principle of separation of the object and subject of legal science. It is shown that when constructing a scientific theory of law, the primary question is the object of study, that is, the question of law itself as a special fragment of the real world, but not a disputable issue of the concept of law. However, in practice, when identifying the object of scientific knowledge in the general theory of law, scholars choose to study the most diverse fragments of the world, although they designate them with the same term law. Since various objects called law are subjected to scientific research, one cannot expect to derive a single concept of law. With regard to the analysis of the concept of law and the data of modern science, the following set of attributes for identifying law as an object of study in law theory is proposed for consideration: Law is a set of social norms enshrined in written language by the state and designed for people to interact with each other and with public authority such as state and other entities.


2010 ◽  
Vol 3 (2) ◽  
Author(s):  
Jose R. Rodriguez

Formalism persists everywhere despite 100 years of critical legal theory. The reasons for that are sociological and political and include the persistence of the separation of powers idea as a central concept for the theory of law. In Brazil, this phenomenon manifests itself acutely for two supplementary reasons: (1) the lack of a real differentiation between academic research and professional lawyering and (2) the influence of neo-liberal economic thought.The persistence of formalism is a serious problem for Brazilian development since it naturalizes the existing institutions and their related power positions, creating an obstacle to any project of development that proposes something new. It blocks the development of a critical and reflexive knowledge on institutions, shortening institutional imagination to projects that could transform Brazilian reality.The main objective of this article is to develop a critique of formalism useful both as a general method to criticize formalism and as a tool to criticize its Brazilian manifestation. It will be argued here that the critique of formalism fails when it is only theoretical. An efficient critique must also grasp the ideas and the social relations responsible to reproduce formalism as a conceptual idea that informs social practices.To do that, this article will first propose a characterization of Brazilian formalism that does not fit in the Formalism X Instrumentalism dichotomy and is more adequate to grasp how law rationality works in countries from the Continental Law tradition. Afterwards, it will identify the power positions and the respective ideologies responsible to reproduce formalism in Brazil, giving criticism a sociological basis. Finally, it will show that only a positive view of what law should be will able to overcome formalism, both as a philosophical idea and as a social practice. In its final part, a sketch of such a view will be presented.


2020 ◽  
Vol 12 ◽  
pp. 18-20
Author(s):  
Olga N. Ordina ◽  

In the administrative and legal science there is a refinement, change and expansion of the subject of the dynamic branch of administrative law, aimed at eliminating the resulting lag of legal theory from the legal reality. In our view, of the three basic categories that characterize the subject of administrative law, “public administration”, “executive power” and “administrativepublic activity”, the main generalization category is the category “administrative and public activities”. The phenomenon of the subject of administrative law refracts the problems and discussions inherent in the industry as a whole. In view of the existence of different points of view on the subject of administrative law, the legal science has not yet formulated a single definition of it. There is a tendency to overcome the conflict between different types of understanding, to bring together the positions of different concepts of understanding of administrative law in order to form a “universal” concept of it, to develop its common concept.


Legal Theory ◽  
2013 ◽  
Vol 19 (4) ◽  
pp. 331-346
Author(s):  
William A. Edmundson

The concept of law is not a theorist's invention but one that people use every day. Thus one measure of the adequacy of a theory of law is its degree of fidelity to the concept as it is understood by those who use it. That means “saving the truisms” as far as possible. There are important truisms about the law that have an evaluative cast. The theorist has either to say what would make those evaluative truisms true or to defend her choice to dismiss them as false of law or not of the essence of law. Thus the legal theorist must give an account of the truth grounds of the more central evaluative truisms about law. This account is a theory of legitimacy. It will contain framing judgments that state logical relations between descriptive judgments and directly evaluative judgments. Framing judgments are not directly evaluative, nor do they entail directly evaluative judgments, but they are nonetheless moral judgments. Therefore, an adequate theory of law must make (some) moral judgments. This means that an adequate theory of law has to take a stand on certain (but not all) contested issues in political philosophy. Legal theory is thus a branch of political philosophy. Moreover, one cannot be a moral-aim functionalist about legal institutions without compromising one's positivism about legal norms.


2021 ◽  
Vol 11 (1) ◽  
pp. 12
Author(s):  
Delfín Ortega-Sánchez

The most recent scientific literature on the treatment of social problems or controversial social questions in the social sciences classroom and their inclusion into curricula emphasizes the need to introduce students into large-scale social debates where different points of view exist, different interests are at stake, and where it is desirable that they construct their own opinions in that respect from a critical and reasoned perspective [...]


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