scholarly journals A Crítica de Dworkin ao Convencionalismo e sua Relevância: Um Esquema de Crítica Conceitual / Dworkin’s Criticism of Conventionalism and Its Relevance: A Conceptual Criticism Scheme

2016 ◽  
Author(s):  
Ronaldo Porto Macedo Jr
Keyword(s):  
Legal Theory ◽  
Legal Positivism ◽  
Accurate Description ◽  
Conceptual Scheme ◽  
Legal Practice ◽  
Ronald Dworkin ◽  
Logical Grammar ◽  
The Law ◽  
Correct Understanding

Resumo: O trabalho apresenta um esquema conceitual da crítica formulada por Dworkin ao convencionalismo jurídico e seus impactos para a correta descrição do conceito de direito e da compreensão da natureza dos nossos desacordos jurídicos. Depois de  definir os significados de convenção, convencionalismo e do convencionalismo jurídico é apresentada a sua relevância para a determinação de uma concepção positivista de direito apoiada na tese de que este de funda exclusivamente em fontes diretamente sociais. Em seguida, são apresentados casos paradigmáticos de desacordos teóricos que não são adequadamente explicados por uma teoria jurídica comprometida com o convencionalismo jurídico. Com base neles é apresentado um esquema conceitual geral e provisório para a compreensão da critica que Dworkin formula ao convencionalismo jurídico, salientando-se como ela se fundamenta numa análise da gramática lógica pressuposta em desacordos teóricos comuns em nossa prática jurídica. Por fim, o texto indica que o convencionalismo jurídico não foi capaz de responder ao desafio dworkiniano na medida em que não considerou corretamente o tipo de desacordo teórico que estava em questão em casos centrais das práticas jurídicas.Palavras-chave: Positivismo jurídico; Convencionalismo jurídico; Interpretativismo.Abstract: The essay presents a conceptual scheme of the criticism made by Ronald Dworkin to legal conventionalism and its relevance for an accurate description of the law and the correct understanding of the nature of legal disagreement. After defining the concepts of convention, conventionalism and legal conventionalism it shows its connection to a positivist conception of law based on the exclusive social grounds of law. It offers shows how some paradigmatic cases of theoretical disagreements are not adequately explained by a legal theory committed with legal conventionalism. Based on these cases the text offers a general and preliminary conceptual scheme to understand Dworkin’s criticism of legal conventionalism. Dworkin’s approach is grounded on the analysis of the logical grammar presupposed by theoretical disagreement common in ordinary legal practice. Finally the essay points to the fact that legal conventionalism failed to cope with the Dworkinian challenge since it could not rightly take in consideration the kind of theoretical disagreements that are at stake in pivotal cases of legal practice.Keywords: Legal positivism; Legal conventionalism; Interpretativism.

scholarly journals Imigração Haitiana no Brasil: os Motivos da Onda Migratória, as Propostas para a Inclusão dos Imigrantes e a sua Proteção à Dignidade Humana / Haitian Immigration in Brazil: the Migration Wave Reasons, the Proposals for Inclusion of Immigrants and their Protection for Human Dignity

2016 ◽  
Author(s):  
Leda Maria Messias da Silva ◽  
Sarah Somensi de Lima
Keyword(s):  
Human Dignity ◽  
Legal Theory ◽  
Accurate Description ◽  
Conceptual Scheme ◽  
Legal Practice ◽  
Ronald Dworkin ◽  
Haitian Immigrants ◽  
Logical Grammar ◽  
De Se ◽  
Correct Understanding

Resumo: o presente artigo trata das imigrações haitianas que vêm ocorrendo no Brasil desde 2010 e das propostas de inclusão destes imigrantes. Primeiramente, avaliam-se os motivos que levaram a esse crescente fluxo de imigrações, bem como a maneira que chegaram ao país. As imigrações sempre fizeram parte da história do mundo, sendo assim, não é de hoje que esse assunto é relevante para os países. Entretanto, no Brasil, esse tema denota ultimamente ainda mais importância devido a essa onda imigratória. Em seguida, a pesquisa discorre acerca da dignidade destes imigrantes, evidenciando a reflexão e o debate sobre a importância de se garantir a dignidade aos imigrantes haitianos, destacando algumas propostas para a efetivação das garantias. Por fim, o texto apresenta as propostas que estão sendo elaboradas no Brasil para tratar sobre o assunto e outras políticas de inclusão, que poderiam amenizar o problema. Enfim, é muito importante enfatizar que todos têm direitos iguais e, principalmente, todos merecem um tratamento digno.Palavras-chave: Imigrantes haitianos; Inclusão; Dignidade humana. Abstract: The essay presents a conceptual scheme of the criticism made by Ronald Dworkin to legal conventionalism and its relevance for an accurate description of the law and the correct understanding of the nature of legal disagreement. After defining the concepts of convention, conventionalism and legal conventionalism it shows its connection to a positivist conception of law based on the exclusive social grounds of law. It offers shows how some paradigmatic cases of theoretical disagreements are not adequately explained by a legal theory committed with legal conventionalism. Based on these cases the text offers a general and preliminary conceptual scheme to understand Dworkin’s criticism of legal conventionalism. Dworkin’s approach is grounded on the analysis of the logical grammar presupposed by theoretical disagreement common in ordinary legal practice. Finally the essay points to the fact that legal conventionalism failed to cope with the Dworkinian challenge since it could not rightly take in consideration the kind of theoretical disagreements that are at stake in pivotal cases of legal practice.Keywords: Haitian immigrants; Inclusion; Human Dignity.

scholarly journals From Apology to Utopia and the Inner Life of International Law

2016 ◽  
Vol 29 (3) ◽  
pp. 641-666 ◽  
Author(s):  
AKBAR RASULOV
Keyword(s):  
International Law ◽  
Significant Contribution ◽  
Legal Theory ◽  
Legal Positivism ◽  
Legal Practice ◽  
Inner Life ◽  
Legal Science ◽  
The Subject

AbstractA certain body of mythology has emerged in recent years around Martti Koskenniemi's From Apology to Utopia (FATU). At its heart lies a group of received wisdoms that tell us that FATU should essentially be considered a work of postmodern scholarship, that it provides a typical illustration of the so-called deconstructivist approach, and that its single most significant contribution to the field of international legal theory lies in its discussion of the subject of legal indeterminacy. In this article, I seek to challenge and displace this set of narratives, by excavating and restoring to the surface FATU's original intellectual project: a highly ambitious attempt to revive the traditional enterprise of ‘legal science’ by marrying Kelsenian legal positivism with Saussurean structuralist semiotics. In doing so, it succeeded in developing a set of analytical idioms and reasoning protocols that gave the international law profession not only a reason but also the necessary intellectual materials to revolutionize its day to day understanding of the essential character of international legal practice. Thus, far from being a manifestation of any kind of postmodernist sensibility, FATU, I am going to argue, represents, in fact, the exact opposite of it.

scholarly journals A LÓGICA DEDUTIVA SOB A ÓTICA DA INTERPRETAÇÃO JURÍDICA E DA TEORIA DA DECISÃO

2011 ◽  
Vol 08 (1) ◽  
pp. 16-21
Author(s):  
Ana Augusta Rodrigues Westin Ebaid
Keyword(s):  
Complex System ◽  
Legal Theory ◽  
Inductive Logic ◽  
Logical Reasoning ◽  
Legal Positivism ◽  
Legal Decision ◽  
Democratic State ◽  
Deductive Method ◽  
Chaim Perelman ◽  
The Law

This paper discusses the application of deductive logical reasoning in the interpretation and legal decision, focusing on legal positivism and its base of constitution in a democratic state. The study aims to examine the contours of legal positivism from the perspective of one of its biggest critics: the philosopher Chaïm Perelman. The investigation begins with the study of deductive and inductive logic, examining its relationship with the law, to achieve a legal theory that reaches the philosophical and political ideals of a democratic state. The research indicates that despite the logical deductive method to develop as an important tool in the legal world, it is not enough to express adequately a complex system that involves, above all, values whose goal is to achieve the realization of justice.

scholarly journals El problema de la relación entre derecho y moral

2021 ◽  
pp. 65-80
Author(s):  
José Luis López Fuentes
Keyword(s):  
Natural Law ◽  
Legal Theory ◽  
Legal Positivism ◽  
Ronald Dworkin ◽  
Law And Morality ◽  
The Relationship

RESUMEN: En el presente trabajo, con base en las teorías iusnaturalistas y del positivismo jurídico, se busca ofrecer un breve acercamiento al desarrollo que han tenido a través del tiempo las tesis más importantes en torno al problema de la relación entre derecho y moral, hasta llegar a lo que actualmente es denominado antipositivismo jurídico, pues el objetivo de este documento es presentar un análisis y exposición de las aportaciones de esta corriente de pensamiento a la teoría jurídica contemporánea, para lo cual, se analizan las propuestas de Ronald Dworkin y Robert Alexy, en especial de la tesis de los principios, y su relevancia en la interpretación y aplicación de la ley.ABSTRACT: In this work, based on natural law theories and legal positivism, I seek to offer a brief approach  to the development that the most important theses have had throughout time regarding the problem of the relationship between law and morality, arriving at what we now call legal anti-positivism, the objective of this document is to present an analysis and exposition of the contributions of this current of thought to contemporary legal theory, for which the proposals of Ronald Dworkin and Robert Alexy are analyzed, specially the thesis of the principles, and its relevance in the interpretation and application of the law.Keywords: Natural law theories, legal positivism, legal antipositivism, moral, thesis of principles.

Women and Gender in Canon Law

2013 ◽  
Author(s):  
Sara McDougall
Keyword(s):  
Canon Law ◽  
Legal Theory ◽  
Legal Practice ◽  
Women And Gender ◽  
Men And Women ◽  
Three Stages ◽  
Marriage Formation ◽  
The Law ◽  
And Gender ◽  
The Church

Canon law, the law of the church, defined men and women as distinct and different. Nevertheless, particularly in marriage, canon law also endorsed several important equalities for spouses, irrespective of gender. This article seeks out the balance between gender equalities and inequalities in marriage as found in legal theory and in legal practice, in canon law and in canon law courts. The law itself called for a contradictory positioning of men and women as husbands and wives in a relationship that required both a hierarchical structure and at the same time equality. Ecclesiastical judges practiced a complex implementation of these rules. The article will examine the place of gender in canon law and legal practice concerning marriage in three stages: marriage formation, married life, and dissolution.

scholarly journals Dismissal of KPK Employees from Legal Positivism and Alternative Solutions

2021 ◽  
pp. 175
Author(s):  
Dominikus Dalu Sogen ◽  
Dewa Ayu Putri Asvini ◽  
Detty Kristiana Widayat
Keyword(s):  
Human Rights ◽  
Legal Theory ◽  
Legal Positivism ◽  
Constitutional Court ◽  
Human Right ◽  
The Public ◽  
Positive Law ◽  
The People ◽  
National Human ◽  
The Law

Studying the philosophy of law means studying various schools of law. Amongst the variety of legal theories, there are adherents of legal positivism or the positive legal theory postulated by John Austin (a philosopher whose thoughts on law are outlined in a work entitled The Province of Jurisprudence Determined 1832). Are Austin's thoughts still relevant for the practice of law inthe modern era, considering that law is made for the public interest? Is it appropriate for the law to be made by authorities (superior) to bind subordinates (inferior), whereas the people are only in a position to obey the law? In a functioning democracy public participation is important in decision-making by the elected legislators. Presumably, law is not made arbitrarily or unilaterally, but it is supposed to take into account the interest of the public or the interest of the groups it is designed to address. A prominent example currently in the public spotlight isthe dismissal of 57 Corruption Eradication Commission (KPK) employees due to their stated ineligibility following their failure to pass the National Insight Test Assessment. For this matter, a judicial review (JR) has been requested from the Constitutional Court and the Supreme Court who in the meantime have published their decisions. In addition, there have been recommendations from the National Human Rights Commission (Komnas HAM) and the Indonesian Ombudsman regarding the occurrence of human rights violations and maladministration in the transfer of KPK employees to ASN. Where JR's decision by the two judicial institutions is different from what is recommended by Human Right Commission and the Indonesian Ombudsman. Here it can be seen that there are differences in the application of the law with the positive law that applies and is detrimental to the rights of KPK employees.

Two Puzzles from the Postscript

Legal Theory ◽  
1998 ◽  
Vol 4 (3) ◽  
pp. 359-380 ◽  
Author(s):  
Philip Soper
Keyword(s):  
Twentieth Century ◽  
Natural Law ◽  
Legal Theory ◽  
Ronald Dworkin ◽  
Beliefs And Values ◽  
Law And Morality ◽  
The Law

Conversions occur in legal theory about as often as they do in religion, which is to say rarely—so rarely that they fascinate as much for the fact that they happen at all as for the reasons they happen. It should not surprise, then, that the Postscript to H.L.A. Hart's famous work on jurisprudence reveals “the outstanding English philosopher of law of the twentieth century” reaffirming, rather than revising in any significant way, the two central tenets that distinguish his theory from that of both classical natural law theorists and modern “new naturalists” like Ronald Dworkin: (1) There is no necessary connection between law and morality; and (2) judges inevitably confront cases where the decision is “not dictated by the law” and the judge “must act as a conscientious legislator would by deciding according to his own beliefs and values” (p. 273).

Imperial Visions and Mundane Practices

1987 ◽  
Vol 46 (3) ◽  
pp. 465-488 ◽  
Author(s):  
N. E. Simmonds
Keyword(s):  
Legal Theory ◽  
Ronald Dworkin ◽  
Legal Rules ◽  
Sound Theory ◽  
The Law ◽  
Theory Of Law ◽  
Correct Application ◽  
Proper Interpretation ◽  
Hard Cases

In his first book, Taking Rights Seriously, Ronald Dworkin opposed the view that law is a body of publicly ascertainable rules identifiable by some basic master test or rule of recognition. In place of that account he offered a rival vision. Law was portrayed as inherently controversial in content. Discovering the law on this or that subject is not, Dworkin argued, simply a matter of looking up the established rules: it is a matter of constructing a justificatory theory beneath which the established legal rules can be subsumed. In his latest book, Law's Empire, that account of the nature of law has been backed up by an analogous account of the nature of legal theory. A sound theory of law, we are told, is not one that unearths semantic rules governing the use of the word ‘law’. Disputes between rival legal theories do not hinge on the discovery of such deep semantic criteria, any more than disputes about the content of the law in hard cases hinge on the correct application of a rule of recognition. Disputes of both kinds are interpretive disputes: they concern the proper interpretation of legal practices.

scholarly journals PRINCIPLE, PRACTICE, AND PRECEDENT: VINDICATING JUSTICE, ACCORDING TO LAW

2018 ◽  
Vol 77 (2) ◽  
pp. 269-297 ◽  
Author(s):  
T.R.S. Allan
Keyword(s):  
Moral Judgment ◽  
Legal Theory ◽  
Common Law ◽  
Legal Practice ◽  
Moral Obligations ◽  
Moral Ideals ◽  
Legal Obligations ◽  
The Law

AbstractLegal judgment, I argue, entails moral judgment; legal obligations, correctly identified, are genuine moral obligations. Dworkin's legal theory is instructive, but problematic: his account of integrity fails to provide a convincing reconciliation of practice and principle. We can, however, defend a superior account in which the moral ideals that we invoke to justify legal practice – affirming its legitimacy under certain conditions – retain their force throughout our judgments about its specific demands in particular cases. Common law reasoning exemplifies that approach, reflecting the interdependence of practice and principle. It is an internal, interpretative inquiry, drawing on the moral resources of our own tradition, treated as an influential guide to the requirements of justice. The law is constituted, accordingly, neither by its socially authoritative sources, whatever their merits, nor by the moraleffectsof our legal practice. It is rather the scheme of justice we construct in our continuing efforts to bring our practice closer to the ideals that inspire and redeem it.

TROUBLE FOR LEGAL POSITIVISM

Legal Theory ◽  
2006 ◽  
Vol 12 (3) ◽  
pp. 225-263 ◽  
Author(s):  
Danny Priel
Keyword(s):  
Subject Matter ◽  
Legal Theory ◽  
Legal Positivism ◽  
Legal Validity ◽  
Legal Norms ◽  
The Subject ◽  
The Law

Many contemporary legal positivists have argued that legal theory is evaluative because it requires the theorist to make judgments of importance. At the same time they argue that it is possible to know “what the law is” without resort to evaluative considerations. I distinguish between two senses of “what the law is”: in one sense it refers to legal validity, in another to the content of legal norms, and I argue that legal positivism is best understood (as indeed some legal positivists have explicitly said) as a claim about legal content. Understood this way, however, it is open to the objection that knowing the content of legal norms requires evaluative considerations for reasons similar to those offered by positivists for thinking that legal theory is requires evaluative considerations. I then distinguish between evaluative considerations in general and moral considerations and argue that because of the subject-matter of legal norms, there are good reasons for thinking that it is moral considerations, and not just any other evaluative considerations, that are required for knowing the content of legal norms.

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