Obligations from Artifacts

2018 ◽  
Author(s):  
Brian H. Bix
Keyword(s):  
Legal Philosophy ◽  
Legal Systems ◽  
Moral Obligations ◽  
Coordination Problems ◽  
Legal Rules ◽  
Recent Approach ◽  
The Law ◽  
The Way

A persistent question in modern legal philosophy is whether or how (human-created) legal rules and legal systems can produce moral obligations for citizens. Contemporary theorists have sought answers to this problem in the ideas of conventions, coordination problems, and plans. Some theorists argue that the law—that all legal rules—create general and at-least-presumptive moral obligations; others argue that the law, at best, occasionally triggers pre-existing moral obligations—some legal rules creating moral obligations for some people. This chapter explores the issue of how and when law creates moral obligations, and also considers a more recent approach to the nature of law which has raised doubts regarding whether the law is in fact artifactual in the way most theorists (and most citizens) believe.

Free-Floating from Reality

2008 ◽  
Vol 21 (2) ◽  
pp. 429-445 ◽  
Author(s):  
Danny Priel
Keyword(s):  
Subject Matter ◽  
Legal Philosophy ◽  
Legal Systems ◽  
Legal Norms ◽  
Law And Morality ◽  
The Law

Matthew Kramer has recently proposed a distinction between norms that are free-floating and those that are not. The distinction, he argued, enables us to distinguish between norms that can be incorporated into the law and those that cannot. In this essay I argue that his distinction is based on several theoretical errors, and that even if it were successful, it is unclear why his distinction is relevant for the question of the boundaries between law and morality. I also provide many examples from actual legal systems of legal norms that do not correspond to Kramer’s distinction. I conclude the essay by suggesting that Kramer’s argument exemplifies a prevalent problem in contemporary legal philosophy, in which much work is often based on simplistic models of law and uses them to develop ‘conceptual’ arguments for what closer attention to the facts shows are empirical questions. As a result many current jurisprudential debates are not helpful for understanding legal phenomena. Recognizing this point is important for reorienting legal philosophy towards other questions which would be more helpful for illuminating its subject-matter.

The Role of Rules in the Law of Evidence

2021 ◽  
pp. 69-82
Author(s):  
Frederick Schauer
Keyword(s):  
Common Law ◽  
Legal Systems ◽  
Legal Rules ◽  
European Approach ◽  
The Subject ◽  
The Law ◽  
Law Of Evidence

This chapter starts out with Bentham’s antinomian thesis that rejected the very idea of setting up rules for selecting and evaluating evidence. Bentham believed that factfinding should be governed by epistemically good reasons as a process unconstrained by artificial legal rules. The author observes that most legal systems took up this approach by softening the hard edges of rules (as in common law jurisdictions) and by following the basically free-proof model of factfinding (as in countries that adopted the continental European approach). Yet, he claims that the law of evidence still remains substantially an affair of rules. Why this is the case and whether it should be the case, is the subject of this chapter.

Regulation of Fresh Water Uses

2021 ◽  
pp. 8-68
Author(s):  
Laurence Boisson de Chazournes
Keyword(s):  
Fresh Water ◽  
Energy Production ◽  
Water Regulation ◽  
Minimum Flow ◽  
Legal Rules ◽  
Human Needs ◽  
Legal Regimes ◽  
The Law ◽  
Water Uses ◽  
The Way

Chapter 2 traces the evolution of fresh water regulation. It identifies the various uses of fresh water that have been subject to legal rules, including boundary delimitation along international watercourses, navigation, fishing, irrigation, energy production, other industrial uses, and recreational purposes. Areas where conflicts of uses arise are also highlighted, and the way in which these are sometimes resolved by the law is explained, with an emphasis on the importance of human needs and the notion of minimum flow. The major treaties that purport to govern international watercourses, such as the UN Watercourses Convention of 1997, which entered into force in 2014, as well as other sources of fresh water and their accompanying legal regimes, are similarly presented.

TOLERANCE OF INCOHERENCE IN LAW, GRADED SPEECH ACTS AND ILLOCUTIONARY PLURALISM

Legal Theory ◽  
2020 ◽  
Vol 26 (3) ◽  
pp. 214-249
Author(s):  
Oren Perez
Keyword(s):  
Present Article ◽  
Rule Of Law ◽  
Speech Acts ◽  
Legal Systems ◽  
The Rule Of Law ◽  
Lexical Semantic ◽  
Inferential Model ◽  
Conflicting Demands ◽  
The Law ◽  
The Way

AbstractOne of the most difficult challenges of mature legal systems is the need to balance the conflicting demands of stability and flexibility. The demand for flexibility is at odds with the principle of impartiality, which is considered a cornerstone of the rule of law. In the present article, I explore the way in which the law copes with this dilemma by developing the idea of tolerance of incoherence. I argue that tolerance of incoherence emerges from the interplay between the inferential and lexical-semantic rules that determine the meaning of legal speech acts. I base this argument on an inferential model of speech acts, which I develop through a discussion of graded speech acts, and on the idea that the use of speech acts is governed by multiple and potentially conflicting conventions. I show how this tolerance allows the law to resolve the tension between dynamism and traditionality, and discuss its sociological and moral implications.

scholarly journals Legal Obligation and its Limits

2018 ◽  
Author(s):  
Emad H. Atiq
Keyword(s):  
Conventional Wisdom ◽  
Legal Philosophy ◽  
Legal Obligation ◽  
General Application ◽  
Legal Rules ◽  
Legal Obligations ◽  
Ex Ante ◽  
The Law ◽  
Hard Cases

Judges decide cases by appeal to rules of general application they deem to be law. If a candidate rule resolves the case and is, ex ante and independently of the judge’s judgment, the law, then the judge has a legal obligation to declare it as such and follow it. That, at any rate, is conventional wisdom. Yet the principle is false—a rule’s being law or the judge’s believing it to be law is neither necessary nor even sufficient for a judge being legally obliged to follow it. The principle’s falsity is especially apparent in so-called hard cases, where the line between legal and non-legal rules is obscure. Moreover, judges have authority to disregard law in hard cases not because moral (or non-legal) obligations trump legal obligations. Rather, the law itself circumscribes its own authority. The implications for legal philosophy are significant; for one, a theory of juridical norms can be developed independently of the precise boundaries of legality.

scholarly journals LATYNIZMY W TEKSTACH PRAWNYCH I PRAWNICZYCH – UJĘCIE KONTRASTYWNE POLSKO-NIEMIECKIE

2018 ◽  
Vol 31 ◽  
pp. 69-88
Author(s):  
Joanna WOŹNIAK
Keyword(s):  
European Countries ◽  
Legal Systems ◽  
Anglo Saxon ◽  
Social Origin ◽  
Legal Documents ◽  
Legal Texts ◽  
The Common ◽  
The Law ◽  
The Way

Terms and Phrases of Latin origin have been incorporated into the contempo-rary Continental and Anglo-Saxon legal systems. Latin borrowings are a sign of the common cultural and social origin of European countries. Most of the bor-rowings have been adapted on the phonetic, morphological and grammatical level. Others, like Latin proverbs, terms and phrases retained their original pronunciation and orthography.The main goal of this article is to discuss the essence of Latinisms, in particular their place in the contemporary linguistics and their function in legal texts. In the second part the article presents the results of the analysis of the Latin struc-tures, used in Polish and German legal texts, available in the Eur-lex databases. The research is aimed not only at comparing the occurrence of Latin terms, phrases or proverbs in legal documents, but also at showing the way of their introducing to the text and discussing the consequences of their usage for the understanding of the law.

Explaining Legal Change from an Evolutionary Economics Perspective

2008 ◽  
Vol 9 (4) ◽  
pp. 437-463 ◽  
Author(s):  
Martina Eckardt
Keyword(s):  
Evolutionary Economics ◽  
Economic Evolution ◽  
Legal Change ◽  
Economic Perspective ◽  
Economic Activities ◽  
Coordination Problems ◽  
Legal Rules ◽  
Scarce Resources ◽  
Distribution Of Resources ◽  
The Law

Institutions can have a decisive impact on economic performance. The law is particularly important in shaping the institutional framework for economic activities. Legal rules can be viewed as socio-technological devices used to help individuals solve the coordination problems and conflicts that arise in an environment of scarce resources. In such an environment, the law affects both the allocation as well as the distribution of resources, and is itself influenced and altered by economic evolution. However, our understanding of the determinants and mechanisms of legal change from an economic perspective remains rather weak.

On the Tyranny of the Law

1983 ◽  
Vol 18 (3-4) ◽  
pp. 327-347 ◽  
Author(s):  
Bernard S. Jackson
Keyword(s):  
Extreme Points ◽  
History Of Ideas ◽  
The Other ◽  
Legal Philosophy ◽  
Legal Systems ◽  
Single Spectrum ◽  
Basic Issue ◽  
History Of ◽  
The Law ◽  
The Concept Of Law

As 1984 approaches, Orwell's vision throws its forward shadow over our perception of our situation. No one ever doubted that law could be made an instrument of tyranny. But there are aspects of1984which prompt us to ask whether even the concept of law does not itself constitute a social problem, specifically a deprivation of certain freedoms which in other contexts we value. I shall not be concerned with the extent to which thecontentof particular legal systems tyrannise their subjects. Rather, my concern is with the ways in which law, by virtue of itsformalnature, deprives the subjects of a legal system of freedom. So considered, there are two quite distinct accusations of tyranny which may be levelled at the law: one is so-called “legalism”, which may be regarded as a tyranny of the (intellectual) right; the other is existentialism, viewed as a tyranny of the (intellectual) left. I shall suggest that these two tyrannies in fact represent extreme points on a single spectrum, and that this spectrum may be observed not only in the operation of legal systems, but also in legal philosophy and indeed in theology. In fact, the parallels between legal philosophy and theology may be taken to reflect different (but not historically unrelated) modes of address of the same basic issue in the history of ideas.

scholarly journals The winding up of insolvent companies in England and France

1981 ◽  
Author(s):  
Χριστόφορος Λιβαδάς
Keyword(s):  
Legal Systems ◽  
Similar Measure ◽  
Member States ◽  
Advantages And Disadvantages ◽  
The Subject ◽  
Similarities And Differences ◽  
The Law ◽  
The Way

This thesis has two main objectives. The first is to set out the law in force in England and Prance regarding the winding up of insolvent companies and the second to point out the similarities and differences in the way in which the various questions of law which arise in relation to insolvency are treated by the legal systems of these countries, as well as their respective advantages and disadvantages. However, the law is set out only in so far as is necessary to attain this second objective — that is to say, to the extent that it serves comparative purposes. The nature of this work is therefore principally comparative, since the contribution to the knowledge of the subject selected is intended to be a comparison of the English and the French legal systems in relation to the insolvency of companies.The scope of the thesis is defined so as to include those procedures relating to insolvent companies which lead to the realisation of a company's assets to the exclusion of those aimed at a scheme of arrangement or similar measure. Since it is the author's opinion that both legal systems leave much to be desired, certain proposals are made where, in his view, a change would be beneficial. Within the framework of the subject treated, special emphasis is placed on the question of the protection of the company's creditors — especially those who are unsecured— and its employees, as well as to the questions of the position of secured and preferential creditors and the liability of directors. As both England and Prance are members of the EEC, the latter's efforts to bring about an approximation of the insolvency laws of its Member States are examined in the appropriate places.

scholarly journals Law Enforcement in Indonesia: Exploration of the Concept of Justice in Islamic Dimension with Pancasila Ideology

2018 ◽  
Vol 2 (2) ◽  
pp. 246
Author(s):  
Ucuk Agiyanto
Keyword(s):  
Law Enforcement ◽  
Research Method ◽  
Human Life ◽  
Legal Aspects ◽  
Value Orientation ◽  
Legal Philosophy ◽  
Legal Systems ◽  
Dynamic Interactions ◽  
Descriptive Research ◽  
The Law

Law enforcement in Indonesia is still not going well and is so alarming. The problem of law enforcement (law enforcement) always tends to be the imbalance of dynamic interactions between legal aspects in expectations or das swollen, with elements of the application of the law in reality das sein. The weakness of law enforcement in Indonesia today can be reflected in various resolutions of significant cases that have not been completed, one of which is the practice of corrupt corruption, but ironically the main actors are very few who are legally enforced. This fact is precisely the best compared to some cases involving small people. Judging from the study of philosophy, the reflection of legal philosophy is done to be able to know the irregularities that exist in the application of the law in looking at the value orientation of justice that concerns the view of human life. Because the code must always be returned to its original purpose to create justice, this study discusses Sidharta's conception of building and legal systems in examining the problem of law enforcement in Indonesia. The research method used in this paper is descriptive research, which aims to investigate law enforcement in Indonesia in terms of the study of the philosophy of law and law enforcement seen from the concept of Sidharta in creating justice law. Penegakan hukum di Indonesia masih belum berjalan dengan baik dan begitu memprihatinkan. Permasalahan penegakan hukum (law enforcement) selalu bertendensi pada ketimpangan interaksi dinamis antara aspek hukum dalam harapan atau das sollen, dengan aspek penerapan hukum dalam kenyataan das sein. Lemahnya penegakan hukum di Indonesia saat ini dapat tercermin dari berbagai penyelesaian kasus besar yang belum tuntas, salah satunya adalah praktek korupsi yang menggurita, namun ironisnya para pelaku utamanya sangat sedikit yang terambah hukum. Kenyataan tersebut justru berbanding terbaik dengan beberapa kasus yang melibatkan rakyat kecil. Dilihat dari kajian filsafat, refleksi filsafat hukum dilakukan untuk dapat mengetahui kejanggalan-kejanggalan yang ada dalam penerapan hukum dalam menilik orientasi nilai keadilan yang menyangkut pandangan hidup manusia. Sebab hukum harus selalu dikembalikan kepada tujuan awalnya untuk menciptakan keadilan. Penelitian ini membahas konsepsi Sidharta tentang bangunan dan sistem hukum dalam mengkaji masalah penegakan hukum di Indonesia. Metode penelitian yang digunakan dalam penulisan ini adalah penelitian deskriptif, yang bertujuan untuk mengkaji penegakan hukum di Indonesia ditinjau dari kajian filsafat hukum dan penegakan hukum dilihat dari konsep Sidharta dalam menciptakan hukum yang berkeadilan.

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