Of Law and Other Artificial Normative Systems

2019 ◽  
pp. 137-164 ◽  
Author(s):  
Mitchell N. Berman
Keyword(s):  
Single Domain ◽  
Legal Systems ◽  
Ronald Dworkin ◽  
Philosophical Literature ◽  
Normative Systems ◽  
The Face

How should the normative landscape and law’s place within it be conceptualized? On the face of things, people navigate a multiplicity of independent artificial normative systems—legal systems, sports, games, etiquette, fashion, families, and so forth—that are of their own making and that deliver and maintain rules and oughts that are only ‘formally’ normative and may conflict. In recent years, however, several prominent legal philosophers, Ronald Dworkin most notably, have advocated some version of a ‘one-system picture’ according to which appearances deceive, and we inhabit just a single domain of ‘real’, ‘genuine’, or ‘robust’ normativity. This chapter presents an alternative picture that aims to vindicate, rather than to refute, outward appearances—an alternative picture that, it is claimed, reflects background assumptions that legal positivists widely share but that is oddly marginalized, nearly invisible, in the current legal philosophical literature. It has three main ambitions: to surface and sharpen the central features of this ‘standard positivist picture’, to make sense of H. L. A. Hart’s own complex and shifting relationship to that picture, and to isolate and critically evaluate arguments advanced by one-system theorists that purport to show that such a picture is circular or eliminable. The chapter concludes by suggesting possible lessons that legal philosophers might learn by paying more systematic attention to the broader universe of artificial normative systems in which law is situated.

Covering Blood and Graves

2018 ◽  
pp. 213-237
Author(s):  
Nancy O. Gallman ◽  
Alan Taylor
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Legal Systems ◽  
Spanish Law ◽  
Indigenous Groups ◽  
Spanish Florida ◽  
The Face ◽  
English Law ◽  
Corporate Autonomy

Gallman and Taylor take up murder at the boundary zones between the Iroquois and British settlers and between Spanish Florida and the Lower Creeks and Seminoles. Despite contrasts between the legal systems of the empires—civil law and inquisitorial procedure on the Spanish side, common law and trial by jury on the British side—indigenous groups came to similar conclusions regarding murder. Specifically, Native leaders rejected execution of the guilty, as proposed by English law, or other punishments, from execution to imprisonment to exile, under Spanish law. They opted instead to resolve matters by “covering the grave,” or giving gifts by the culpable party to the aggrieved party in lieu of revenge. This practice was less likely to spark a blood feud and enabled indigenous groups to preserve corporate autonomy in the face of pressures to conform to imperial norms. Though reluctantly, imperial officials often went along with this in order to keep the peace.

Proactive law and reactive law: transformation of legal systems in the face of great challenges

2020 ◽  
Vol 29 (5) ◽  
pp. 39-55
Author(s):  
Vladimir Przhilenskiy
Keyword(s):  
Goal Setting ◽  
Social Systems ◽  
Social Reality ◽  
Social Practices ◽  
Legal Systems ◽  
Legal Analysis ◽  
The Social ◽  
The Face ◽  
Intention To Change ◽  
Constitutional Identity

The paper substantiates the thesis that the distinction between proactive and the reactive rulemaking [lawmaking] becomes much more distinct and significant in crisis periods of societal development. In such periods, when social systems face huge challenges, the corresponding transformation of legal systems either follows the logic of preserving existing institutions and values (reactive law), – alternatively – goal-setting is based on lawmaking aimed at transforming the social reality (proactive law). Both proactive and reactive lawmaking can come into conflict with the existing constitution, moving society to change it by bringing it into compliance with changed goals and values or changed social realities. In this regard, the fundamental differences between proactive law and reactive law are determined, based on the necessity of introducing these understandings into the conceptual space of social legal analysis. In addition, the concept of anticipatory rulemaking, which has become widespread in Russian legal publications, is analyzed, and the irrelevance thereof to the purposes of the research in question is shown. The concept of proactive law is analyzed in more detail and depth, resulting in identification and description of two main types of this kind of rulemaking. The first type, called pragmatic proactive law, is rulemaking based on practical objectives. This type is characterized by an intention to change social reality without affecting the values of the society being reformed through development and adoption of new laws. Unlike the first one, the second type is initiated by a process of value reassessment and abandonment of old ideals in favor of new ones. The desire to restore the lost correlation between the system of values and social practices gives birth to ethico-teleological proactive law or value-based rulemaking. The transformations in legal systems during the last decade are further considered and analyzed in the context of the major challenges whose impact entails the need to choose between proactive and reactive rulemaking, and – in the instance of proactive rulemaking – gives rise to a dichotomy of the pragmatic-goal-oriented type and the value-based type. It is concluded that it is necessary to include a conceptual-and-methodological model of analysis in the toolkit of analysis of the lawmaking policy of present-day Russia, especially in evaluating the consistency of innovations with constitutional identity.

Brexit. Or, Is the European Union Educable?

2016 ◽  
Vol 17 (S1) ◽  
pp. 63-70
Author(s):  
Russell A. Miller
Keyword(s):  
Western Europe ◽  
Common Law ◽  
Civil Law ◽  
Legal Culture ◽  
Civil Code ◽  
Legal Systems ◽  
The European Union ◽  
Legal Traditions ◽  
The Face ◽  
European Civil Code

In an essay from 1998 the comparative law scholar Pierre Legrand asked the question “are civilians educable?” It was a theme that had preoccupied him for some years as he agonized over what he regarded as the intolerant, totalizing, and normalizing manner in which civilian legal systems and their acolytes encounter other legal traditions. He had documented, for example, the ways in which Quebec's new 1994 Civil Code constructively sought to suppress and exclude the significant and historically relevant Anglophone community in Quebec. Legrand argued that this domineering posture is a product of the civil law's cosmological and autarkic mentality. “The difficulty,” Legrand lamented, “is that the civil law mind … is reflexively imperialistic … because of its penchant for universalization.” Far more than his disquiet over the precarious future of Quebec's Anglophone community, Legrand came to be concerned about the fate of the English common law tradition in the face of the European Union's convergence agenda. This was, to Legrand's mind, an apocalyptic confrontation between England's still-proud legal culture and Europe's horsemen of convergence: the ECJ, the Commission, the Parliament. With increasing distress Legrand turned his attention to the way in which the European Community (and later the Union) “is liable to achieve … the marginalization of one of the subcultures that have defined western Europe historically.” He would go on to insist that “European legal systems are not converging” and to raise ever-more strident objections to the idea of a European civil code. This would not cease until Legrand had written “Antivonbar,” an incendiary manifesto aimed at salvaging the English common law from what he viewed as the Union's closed-fisted and violent politics of supremacy, which had taken the form of the proposed European Civil Code.

scholarly journals The legal system for horse protection in ancient China

2021 ◽  
Vol 12 (3) ◽  
pp. 28-42
Author(s):  
Lihong Gao ◽  
Da Su
Keyword(s):  
Animal Welfare ◽  
Legal System ◽  
Good Life ◽  
Legal Framework ◽  
Legal Systems ◽  
Ancient China ◽  
Animal Protection ◽  
Ecological Awareness ◽  
The Face ◽  
History Of

The concept of "animal welfare" originated relatively recently and refers to fulfilling the basic needs of animals to avoid unnecessary suffering. However, in ancient China, ecological awareness similar to current “animal welfare” had already been awoken and codified in the form of a series of legal systems, among which were specific regulations for horses that entailed giving them a good life, as well as a series of “animal welfare” regulations more in line with the current sense, such as not hitting them in the face, nor using genetically related horses for breeding. This paper analyses the current legal framework of animal protection to trace the legal system on horse protection throughout the history of China.

Terrorist Offenses and Juveniles – a Comparison between Germany and Turkey

2021 ◽  
pp. 1-49
Author(s):  
Yusuf Solmaz Balo ◽  
Felix Butz
Keyword(s):  
Juvenile Delinquency ◽  
Criminal Law ◽  
Legal Systems ◽  
Terrorist Organizations ◽  
Legal Responses ◽  
The Face

Abstract Terrorism criminal law and juvenile criminal law are branches of law that modify default criminal law provisions. In terms of their goals, these approaches mostly oppose each other. While the primary purpose of terrorism law is to meet the security needs of society, juvenile criminal law serves the privileged interests of juveniles and their reintegration to that society. With increasing active recruiting of juveniles by terrorist organizations, the question arises of what legal systems are doing in the face of juvenile terrorist offenses. This paper analyses and compares legal responses to terrorist crimes by juveniles in Germany and Turkey. The authors conclude that in Germany juvenile terrorist offenses are granted the benefits of juvenile criminal law to a higher degree than in Turkey. This has various legal and extra-legal reasons; however, in both legal systems reforms seem necessary to react more adequately to this troubling form of juvenile delinquency.

LEGAL HUMANISM AND LAW-AS-INTEGRITY

2008 ◽  
Vol 67 (2) ◽  
pp. 352-375 ◽  
Author(s):  
Mark D. Walters
Keyword(s):  
Ronald Dworkin ◽  
The Past ◽  
Political Morality ◽  
Comprehensive Theory ◽  
Legal Challenges ◽  
The Face ◽  
Just Decisions ◽  
Equal Concern ◽  
Made In ◽  
Hard Cases

According to Ronald Dworkin, all judges are by necessity philosophers, and no judge is a better philosopher than Hercules. This superhuman jurist understands that law's empire embraces not just decisions about rights made in the past, but also rights implicit in the theory of political morality that those decisions presuppose. He is able to survey all of the diverse laws within a system and then construct a comprehensive theory of political morality that shows those laws to be as coherent and unified and just as they can be. From this theory not only will right answers in hard cases emerge, but the value of integrity-the value of extending to everyone the rights extended to some so that equal concern and respect is secured for all-will be honoured. In contrast, Herbert, the judge Dworkin introduces as Hercules' nemesis, thinks that law ends just at the point where hard cases begin. Herbert is intellectually flatfooted in the face of legal challenges that Hercules can handle adeptly and accurately.

Diversity in Democracy: Accommodating Religious Particularity in Largely Secular Legal Systems

2013 ◽  
Vol 28 (2) ◽  
pp. 337-340
Author(s):  
Mirjam Künkler ◽  
Yüksel Sezgin
Keyword(s):  
Social Science Research ◽  
Legal Pluralism ◽  
Science Research ◽  
Customary Law ◽  
Research Network ◽  
International Institute ◽  
Legal Systems ◽  
Political Systems ◽  
Political Equality ◽  
The Face

The articles assembled in this symposium share their roots in a workshop we organized at the International Institute for the Sociology of Law (IISJ) in Onati, Spain, in June 2011. The workshop, titled “Legal Pluralism and Democracy. When Does Legal Pluralism Enhance, When Does It Erode Legitimacy of and Trust in Democratic Institutions?” examined the consequences of legal pluralism for various facets of democracy, from human rights and political equality to issues of stateness, legitimacy, and self-determination. Half of the papers discussed the application of customary law in pluri-legal systems, particularly in Africa and South America, while the other half dealt with the application of religious law, especially in Muslim-majority countries as well as Israel and India.Other papers presented at the workshop have been published in the IISJ's “Oñati Socio-Legal Series” on the Social Science Research Network and are available for download at http://papers.ssrn.com/so13/JELJOUR_Results.cfm?form_name=journalbrowse&journal_id=1605943.The three articles featured in this symposium address how the law may take account of diversity in the face of the democratic promise of universal rights standards: they probe the question of how to accommodate cultural particularity while also delivering upon the promise of universal and equal citizenship. Both are crucial sources of legitimacy of and trust in democratic political systems, even while they are also often mutually exclusive standards.

scholarly journals 'Saints without God'

2018 ◽  
Vol 29 (1) ◽  
Author(s):  
Grace Whistler
Keyword(s):  
Twentieth Century ◽  
Philosophical Literature ◽  
Early Twentieth Century ◽  
The Face ◽  
Christian Thought ◽  
French Intellectuals

This article addresses Camus’s response to Christianity and the problem of suffering in the context of the early twentieth century. Owing to his association with the existentialist movement, it is often assumed that Camus, like many other French intellectuals of the period, rejected Christianity altogether. For this reason, his sympathy with Christian thought is overlooked, and it seems altogether bizarre that some theologians even claimed Camus to be a convert. Among these wildly conflicting claims, Camus’s philosophical response to Christianity has become somewhat muddied; in this article I attempt to rectify this. I argue that Camus’s entire philosophy is underpinned by his response to Christianity, and that he wanted to re-establish the position of morality in the face of the problem of suffering. I thus demonstrate how his writings manifest this struggle to achieve this goal, in what I refer to as Camus’s ‘poetics of secular faith’. Camus once claimed, ‘I do not believe in God and I am not an atheist’. This article aims to elucidate just what is meant by a statement like this, as well as to catalogue and analyse Camus’s innovative attempts at reconciling spirituality and suffering through philosophical literature.

Legal Systems, Normative Systems, and the Paradoxes of Positivism

1995 ◽  
Vol 8 (2) ◽  
pp. 363-377 ◽  
Author(s):  
Philip Soper
Keyword(s):  
Natural Law ◽  
Legal Theory ◽  
Legal Systems ◽  
Normative Systems ◽  
Opposing Camp ◽  
Wasted Energy

Philosophy harbors famous divides: utilitarians confront Kantians; communitarians oppose libertarians; and, in legal theory, natural law theorists debate positivists. Explorations into these divides typically proceed with one of three goals in mind. First, one may aim for a position on one side, advancing arguments that reveal new strengths in the position or expose new weaknesses in the opposing camp. (One camp is better.) Second, one may try to bridge the gap by showing that apparently opposed positions share unsuspected connections that reveal them to be links in a common enterprise. (Both camps occupy the same ground—there is no divide.) Finally, relying in part on the fact that these debates seem interminable, one may argue that the dispute is meaningless—a reflection of some misguided theoretical or linguistic assumption that, once exposed, reveals the entire enterprise to have been so much wasted energy. (There is no ground here for either side to camp—move on to something else.)

Post-physicalism and Beyond

Dialogue ◽  
1992 ◽  
Vol 31 (4) ◽  
pp. 593-622
Author(s):  
D. Vaden House ◽  
Marvin J. McDonald
Keyword(s):  
Philosophical Literature ◽  
Reductive Physicalism ◽  
The Face ◽  
The Right ◽  
Minimal Physicalism ◽  
The Way

It is becoming a commonplace in philosophical literature that physicalism need not be reductive. Non-reductive physicalism seems on the face of it to be a contradiction in terms. Some critics have called the idea of a physicalism without reduction “cheap materialism.” It is, of course, possible to quibble about who has the right to be called a physicalist and to play a game of “more physicalist than thou.” However, it would be more fruitful to develop a non-reductive version of physicalism and show that it retains something of the heart of the physicalist tradition while abandoning the reductionist program. John Post's Faces of Existence is just such a project. Post calls his position non-reductive physicalism. It might also be called Post-physicalist, post-dualist, post-relativist, post-everything. After Post, not much remains the same. While in many ways still just a sketch, Faces of Existence does attempt to do justice both to what he takes to be the basic intuitions of physicalism while jettisoning the reductionist program. There is no attempt to prove the truth of non-reductive physicalism in this book. The primary goal is to demonstrate the logical compatibility of a minimal physicalism and a non-reductive pluralism. Along the way we get an attempt to combine realist truth and the relativity of interpretation, to defend the objectivity of values, and to demonstrate the compatibility of some kind of theism with non-reductive physicalism.

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