Kant’s Non-Positivistic Concept of Law

2019 ◽  
Vol 24 (4) ◽  
pp. 497-512
Author(s):  
Robert Alexy
Keyword(s):  
Legal Philosophy ◽  
Legal Validity ◽  
The Third ◽  
Main Thesis ◽  
Social Efficacy ◽  
Law And Morality ◽  
Theory Of Law ◽  
Point Of Departure ◽  
Concept Of Law

AbstractThe main thesis of this article is that Kant’s concept of law is a non-positivistic one, notwithstanding the fact that his legal philosophy includes very strong positivistic elements. My argument takes as its point of departure the distinction of three elements, around which the debate between positivism and non-positivism turns: first, authoritative issuance, second, social efficacy, and, third, moral correctness. All positivistic theories are confined to the first two elements. As soon as a necessary connection between these first two elements and the third element, moral correctness, is established, the picture changes fundamentally. Positivism becomes non-positivism. There exist two kinds of connections between law and morality: classifying and qualifying connections. This distinction stems from different sorts of effects that moral defects give rise to. A classifying connection leads to the loss of legal validity, whereas a qualifying connection leads only to legal defectiveness. In Kant’s theory of law both connections are found. The qualifying connection is conspicuous throughout Kant’s theory of law, whereas the classifying connection, by contrast, is rare and well hidden. This will suffice to consider Kant as a representative of inclusive non-positivism.

H. L. A. Hart, The Concept of Law

2016 ◽  
Author(s):  
Matthew H. Kramer
Keyword(s):  
Political Philosophy ◽  
Twentieth Century ◽  
English Language ◽  
Legal Philosophy ◽  
Law And Morality ◽  
The Concept Of Law ◽  
Moral Philosophers ◽  
Concept Of Law

H. L. A. Hartʼs The Concept of Law is, of course, primarily a work of legal philosophy. It is indeed the most influential work of legal philosophy in the English language (and perhaps in any language) published during the twentieth century. However, the immense importance of the book for philosophers of law should not prevent readers from discerning its importance for political and moral philosophers as well. Hartʼs insights into the nature of law and sovereignty are themselves of great significance for political philosophy, and the second half of The Concept of Law contains ruminations on justice and on the relationships between law and morality that deserve attention from anyone who aspires to think clearly about the problems of political philosophy.

The Nature of Legal Philosophy

2021 ◽  
pp. 7-17
Author(s):  
Robert Alexy
Keyword(s):  
Real World ◽  
Legal Philosophy ◽  
The Real ◽  
The Third ◽  
Normative System ◽  
Law And Morality ◽  
Systematic Reflection ◽  
The Law ◽  
The Relationship

Philosophy is general and systematic reflection about what there is, what ought to be done or is good, and how knowledge about both is possible. Legal philosophy raises these questions with respect to the law. In so doing, legal philosophy is engaged in reasoning about the nature of law. The arguments addressed to the question of the nature of law revolve around three problems. The first problem addresses the question: in what kinds of entities does the law consist, and how are these entities connected such that they form the overarching entity we call ‘law’? The answer is that law consists of norms as meaning contents which form a normative system. The second problem addresses the question of how norms as meaning contents are connected with the real world. The third problem addresses the correctness or legitimacy of law, and, by this, the relationship between law and morality.

Law and Correctness

2021 ◽  
pp. 312-326
Author(s):  
Robert Alexy
Keyword(s):  
Special Kind ◽  
Special Significance ◽  
Main Thesis ◽  
Law And Morality ◽  
Concept Of Law

The main thesis of this chapter is that law necessarily raises a claim to correctness and that this necessary connection between law and correctness implies a conceptually necessary connection between law and morality that goes beyond the scope of a positivistic concept of law. Many objections have been raised to the claim to correctness thesis. Of special significance is the argument that it is, indeed, possible to raise the claim to correctness, but that it is not necessary. The reply presented here is that the claim to correctness is necessary relative to a practice that is essentially defined by the distinction of true or correct and false or wrong. This practice, however, is of a special kind. Indeed, one can try to dismiss the categories of truth, correctness, and objectivity. But if we should succeed in doing so, our speaking and acting would be essentially different from what they are now.

Law's Ideal Dimension

2021 ◽  
Author(s):  
Robert Alexy
Keyword(s):  
Discourse Theory ◽  
Legal Philosophy ◽  
Necessary Condition ◽  
Legal Argumentation ◽  
Constitutional Rights ◽  
Legal Certainty ◽  
Dual Nature ◽  
Real Dimension ◽  
The Third ◽  
Social Efficacy

Law in general, including constitutional rights and legal argumentation, has a dual nature. This is the underlying thesis of this collection of twenty-one chapters devoted to legal philosophy and constitutional law. Law connects a real dimension, defined by authoritative issuance and social efficacy, with an ideal dimension, defined by the claim to correctness, which essentially includes a claim to justice. The chapters of the first part of the book establish on this basis a non-positivistic concept of law. In the second part, the concept of constitutional rights is connected with proportionality analysis, explicated by principles theory and understood as a necessary condition of the rationality of the application of constitutional rights. In the third part, it is shown that rationality is possible in law because rational legal argumentation is possible. Here the basis is discourse theory. The final result is a system that brings the formal idea of legal certainty together with the substantive idea of justice.

scholarly journals Motiv og kontekst

2017 ◽  
Vol 45 (123) ◽  
pp. 87-108
Author(s):  
Jens Lohfert Jørgensen
Keyword(s):  
Specific Form ◽  
Literary Works ◽  
Literary Historiography ◽  
The Third ◽  
Main Thesis ◽  
Fourth Part ◽  
Similarities And Differences ◽  
Work Done ◽  
Point Of Departure

This article deals with the properties and functions of the literary motif in relation to the text’s context. One tendency in present-day literary historiography is a growing scepticism towards contextualism. It takes its point of departure in a wish, on the critic’s part, to engage more actively with the text than a focus on its contexts allows. In the first part of the article, I present two concrete instances of this scepticism. In opposition to it, I defend contextualism – in the specific form of a historiographical practice that is able not only to make literary works more comprehensible to us, but also to make them more strange. I discuss Quentin Skinner’s formulation of this idea in the article’s second part. The article’s main thesis is that is by focusing on motifs, rather than themes, that we can verbalize the historical strangeness of literature. In the third part of the article, I discuss the motif’s ability to relate to the text’s context, drawing on the work done of Jesper Gulddal, Ernst Robert Curtius and Erich Auerbach. In the article’s fourth part, I relate my reflections on the relation between motif and context to the motif of bacteria in Danish literature. In three short readings of texts by Johannes V. Jensen, Villy Sørensen and Bjørn Rasmussen, I demonstrate how a focus on the motif at the same time promotes a synchronic perspective on the texts’ relation to their contexts, and a diachronic perspective on their mutual similarities and differences.

scholarly journals Revitalization of Radbruch's formula in the theory of Robert Alexy

Eudaimonia ◽  
2021 ◽  
pp. 93-135
Author(s):  
Sava Vojnović
Keyword(s):  
The Other ◽  
Rational Justification ◽  
Other Hand ◽  
Legal Nature ◽  
Law And Morality ◽  
The Concept Of Law ◽  
Theory Of Law ◽  
Concept Of Law

In trying to unravel the quandary of the concept of law, Robert Alexy stipulated some sort of an eclectic non-postivistic theory of law which consists of three arguments: from Correctness, Injustice and Principles. He believes in the possibility of a rational justification of objective morality, which he incorporates into the aforementioned three arguments, claiming that law and morality are conceptually connected. This paper will question the limitations of such an approach. The Argument from Correctness states that no system can be considered to have a legal nature if it does not claim correctness, while it will be seen as defective if it does claim, but does not fulfill correctness. On the other hand, the Argument from Injustice is an addition to the previous thesis, through the revitalization of the Radbruch Intolerability and Disavowal Formula – subtracting legal nature from extremely unjust norms. The paper evaluates main objections pointed towards such a conception of law, as well as general problems which may occur within the Arguments from Correctness and Injustice.

scholarly journals Opportunities presented by the forced occupation of liminal space

2019 ◽  
Vol 3 (1) ◽  
pp. 22-33 ◽  
Author(s):  
Ketevan Kupatadze
Keyword(s):  
Qualitative Analysis ◽  
Cultural Practices ◽  
Third Space ◽  
Faculty Members ◽  
Professional Lives ◽  
Structured Interviews ◽  
Liminal Space ◽  
The Third ◽  
Cultural Hierarchies ◽  
Point Of Departure

In this article I employ the notion of the Third Space as a point of departure in order to expand and complicate our thinking about student-faculty partnerships, with the goal of enquiring into the acceptability of and comfort with such space for faculty who self-identify as underrepresented. I consider the practical and real repercussions for these faculty members of engaging in partnership in the context of a reality that is very much shaped by dominant cultural practices, and racial, social, and cultural hierarchies and divisions, and look at how the concept of the liminal space plays out in their professional lives. The findings presented in the article come out of a qualitative analysis of oral semi-structured interviews with underrepresented faculty.

scholarly journals LA SEGONA PERSONA COMPARADA: “EL POBRE RANDALL JARRELL” I GABRIEL FERRATER, CARA A CARA

2006 ◽  
Vol 20 (1) ◽  
pp. 173-199
Author(s):  
Edgar Tello Garcia
Keyword(s):  
Well Water ◽  
Second Person ◽  
The Real ◽  
The Third ◽  
Main Thesis ◽  
Person Pronoun ◽  
The Face ◽  
The Senses ◽  
Randall Jarrell ◽  
Original Relation

The aim of this paper is to study the second person pronoun in the poetry of Randall Jarrell and Gabriel Ferrater. The main thesis goes against the commonplace that holds that the second person pronoun is a mere trace dependent on the poetic I. As we shall demonstrate, the You is absent or evanescent, and its relation to I cannot be reciprocal but shifting. Since both poets were conspicuous literary critics this article first draws up an outline of the possible theoretical implications for selecting that voice. The commentary on their poems is divided into four sections taking up Genette’s concept of palimpsest. Based on a comparison of Ferrater’s “La cara” and Jarrell’s “The Face,” second person clues lead us to comment on the different reading conventions they could have considered before writing a poem. The third section analyzes the second person anchorage, conceived less as an imprisoning structure than as an impossibility of naming (reading) the You properly. Studies of “Well water” and “Si puc” show how naming things that are open to the senses is the only way we can indirectly glimpse, reconstruct or interpret the original relation between first and second person pronouns —a relation we cannot help thinking of as the real— rather than phantasmal —overlapping realism.

scholarly journals Phenomenological Concept of Law from the Perspective of Carlos Cossio

2020 ◽  
Vol 90 ◽  
pp. 119-140
Author(s):  
Krzysztof Goździalski
Keyword(s):  
Strong Relationship ◽  
Legal Philosophy ◽  
Philosophy Of Law ◽  
Philosophy Of Culture ◽  
Starting Point ◽  
Concept Of Law

The originality of Cossio’s works is expressed by a strong relationship between philosophy of law and his philosophical assumptions. The starting point for deliberating on law are widely recognized ontological and epistemological contentions. Cossio justifies his legal theses basing them on his philosophical views. Egology derives from Edmund Husserl’s phenomenology which is related to some elements of William Dilthey’s philosophy of culture. Martin Heiddeger’s and Immanuel Kant’s philosophies are the basis too. The first part describes Cossio’s ontologies of subjects otherwise known as regional ontologies. Methods for examining the above subjects and gnoseological acts are presented here too. The second part presents the characteristics of law as a cultural subject. The article is not only a report. Its aim is also to show that Carlos Cossio’s legal philosophy is semantic in character.

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