scholarly journals Kenneth Himma’s metaphysical conceptualism as inclusive legal positivism

2021 ◽  
Vol 6 (4) ◽  
pp. 110-118
Author(s):  
V. V. Ogleznev ◽  
Keyword(s):  
Conceptual Analysis ◽  
Legal Theory ◽  
Methodological Approach ◽  
Legal Positivism ◽  
Legal Scholar ◽  
Theoretical Contribution ◽  
Current State ◽  
Qualitative Level ◽  
Law And Morality ◽  
Legal Concepts

This article is an introduction to a very original legal theory developed by a contemporary American legal scholar Kenneth Einar Himma. His theory can be conditionally called as Metaphysical Conceptualism, this fully corresponds to both his methodological approach (conceptual analysis and metaphysics of the properties of legal concepts) and the claims he defends. The analysis proposed by Himma made a great theoretical contribution to the discussion of the intersection of morality and law and brought the discussion between inclusive and exclusive legal positivism to a new qualitative level. And although his theory is not without flaws, it is certainly of serious scientific interest for understanding the current state of discussions about law and morality.

Choosing a Legal Theory on Moral Grounds

1986 ◽  
Vol 4 (1) ◽  
pp. 31-48 ◽  
Author(s):  
Philip Soper
Keyword(s):  
Natural Law ◽  
Moral Theory ◽  
Legal Theory ◽  
Moral Authority ◽  
Legal Positivism ◽  
The Other ◽  
Law And Morality ◽  
The Cost ◽  
Practical Implications

I. INTRODUCTIONTwenty-five years is roughly the time that has elapsed since the exchange between H. L. A. Hart and Lon Fuller and the subsequent revival in this country of the natural law/positivism debate. During this time, a curious thing has happened to legal positivism. What began as a conceptual theory about the distinction between law and morality has now been turned, at least by some, into a moral theory. According to this theory, the reason we must see law and morality as separate is not (at least not entirely) because of the logic of our language, but because of the practical implications of holding one or the other of the two traditional views in this area. The natural law theorist, it is said, can connect law and morality only at the cost of investing official directives with undeserved moral authority, thus encouraging obedience where there should be none. The natural law position should therefore be rejected – and the positivist's accepted – on moral grounds.

scholarly journals IDENTITY IN LAW: THE SECOND MEDICAL USE AND THE DRUGS FOR NEGLECTED DISEASES

2018 ◽  
Vol 3 (3-4) ◽  
pp. 124-142
Author(s):  
Marcos Chein Feres
Keyword(s):  
Property Rights ◽  
Legal Theory ◽  
Methodological Approach ◽  
Chemical Substance ◽  
Neglected Diseases ◽  
Industrial Property ◽  
Institutional Approach ◽  
Legal Concepts ◽  
Point Of Departure ◽  
Second Medical Use

This paper is dedicated to presenting a normative political institutional approach, which may creatively reconstruct the hermeneutics of the Brazilian Industrial Property Rights Act in the specific case of the second medical use of known substances in the matter of drugs for neglected diseases. However, the fact of having the same chemical substance, as a point of departure, might signify that the incremented drug does not fulfil the requisites of patentability according to the traditional legal deduction practised in Brazilian courts. Methodologically, the theoretical reference here applied consists of the fusion between the ideas of law as integrity, developed by Dworkin, and law as identity, complemented by Taylor’s social theory of identity and Bankowski’s proposal of living lawfully. In fact, this methodological approach proposes the reconstruction of a system of analytical concepts based on contemporary legal theory in order to legitimatise public decisions whose purpose is to foster the research and development of drugs for neglected diseases. In this context, the legal concepts of novelty, non-obviousness and industrial application listed in the Brazilian Industrial Property Rights Act are reinterpreted according to the theoretical reference of identity in law. 

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.

scholarly journals On Possible Applications of Paul Ricoeur’s Thought in Legal Theory

2015 ◽  
pp. 79-88 ◽  
Author(s):  
Marcin Pieniążek
Keyword(s):  
Legal Theory ◽  
Legal Positivism ◽  
Philosophy Of Law ◽  
Legal Text ◽  
Legal Questions ◽  
Legal Texts ◽  
The Subject ◽  
Law And Morality ◽  
Linguistic Methods ◽  
Key Questions

The paradigm of legal positivism, historically the most important attempt at turning law into science, has been subject to thorough criticism in past decades. The criticism has concerned the most important features of legal positivism, and especially the assumption of separation of law and morality, the dogma of statue being the only source of law, and the linguistic methods of interpreting legal texts. With a crisis of the positive paradigms, the demand for new, humanistic grounds for analysing philosophical and legal questions is intensifying. This is the reason for this article’s attempt to point to the application of Paul Ricoeur’s achievements to the key questions of the philosophy of law. It must be emphasised that his works, and especially Soimême comme un autre, may serve as a foundation for a philosophy of law rejecting the problematic claims about the dualism of being and obligation, the distinction of descriptive and prescriptive languages, and also the separation of law and morality. Thanks to this, the legal topos pacta sunt servanda (agreements must be kept) finds a reinforcement in the ontology of the subject applying law and can be understood as an ethically significant pattern of identity of the self. Equally fruitful seems the possibility of combining the questions of the ontology of the subject applying law with the question of a legal text and its interpretation. The assumption of Ricoeur’s perspective leads to a reduction in the distance between the legal text and its addressee, emphasised by the critics of legal positivism. This rapprochement becomes possible thanks to the connection of the question of the narrative that a legal text is with the question of narrativisation of the subject (i.e. the interpreter of a legal text), being itself in the ipse sense, i.e. applying the law.

1. Introduction to law

2020 ◽  
pp. 3-34
Author(s):  
Scott Slorach ◽  
Judith Embley ◽  
Peter Goodchild ◽  
Catherine Shephard
Keyword(s):  
Rule Of Law ◽  
Natural Law ◽  
Separation Of Powers ◽  
Theory And Practice ◽  
Legal Positivism ◽  
Ethical Theories ◽  
The Rule Of Law ◽  
Legal Studies ◽  
Law And Morality ◽  
Legal Concepts

This chapter considers law as a concept and in its context. It examines key legal concepts such as law and morality, jurisprudence, the legitimacy of laws, the rule of law, and the separation of powers, looking at these in both theory and practice. It includes consideration of the virtue, duty, and consequentialist ethical theories, and legal theories including natural law, legal positivism, realism, and critical legal studies.

scholarly journals IDENTITY IN LAW: THE SECOND MEDICAL USE AND THE DRUGS FOR NEGLECTED DISEASES

2018 ◽  
Vol 3 (3-4) ◽  
pp. 124-142
Author(s):  
Marcos Chein Feres
Keyword(s):  
Property Rights ◽  
Legal Theory ◽  
Methodological Approach ◽  
Chemical Substance ◽  
Neglected Diseases ◽  
Industrial Property ◽  
Institutional Approach ◽  
Legal Concepts ◽  
Point Of Departure ◽  
Second Medical Use

This paper is dedicated to presenting a normative political institutional approach, which may creatively reconstruct the hermeneutics of the Brazilian Industrial Property Rights Act in the specific case of the second medical use of known substances in the matter of drugs for neglected diseases. However, the fact of having the same chemical substance, as a point of departure, might signify that the incremented drug does not fulfil the requisites of patentability according to the traditional legal deduction practised in Brazilian courts. Methodologically, the theoretical reference here applied consists of the fusion between the ideas of law as integrity, developed by Dworkin, and law as identity, complemented by Taylor’s social theory of identity and Bankowski’s proposal of living lawfully. In fact, this methodological approach proposes the reconstruction of a system of analytical concepts based on contemporary legal theory in order to legitimatise public decisions whose purpose is to foster the research and development of drugs for neglected diseases. In this context, the legal concepts of novelty, non-obviousness and industrial application listed in the Brazilian Industrial Property Rights Act are reinterpreted according to the theoretical reference of identity in law. 

1. Introduction to law

2017 ◽  
Author(s):  
Scott Slorach ◽  
Judith Embley ◽  
Peter Goodchild ◽  
Catherine Shephard
Keyword(s):  
Rule Of Law ◽  
Natural Law ◽  
Separation Of Powers ◽  
Theory And Practice ◽  
Legal Positivism ◽  
Ethical Theories ◽  
The Rule Of Law ◽  
Legal Studies ◽  
Law And Morality ◽  
Legal Concepts

This chapter considers law as a concept and in its context. It examines key legal concepts such as law and morality, jurisprudence, the legitimacy of laws, the rule of law, and the separation of powers, looking at these in both theory and practice. It includes consideration of the virtue, duty, and consequentialist ethical theories, and legal theories including natural law, legal positivism, realism, and critical legal studies.

scholarly journals In search of moral foundations of law: debate on nature of inclusive legal positivism

2021 ◽  
Vol 6 (4) ◽  
pp. 119-123
Author(s):  
A. B. Didikin ◽  
Keyword(s):  
Legal System ◽  
Legal Theory ◽  
Applied Ethics ◽  
Legal Positivism ◽  
Moral Foundations ◽  
Judicial Practice ◽  
Theoretical Approaches ◽  
Law And Morality ◽  
Necessary And Sufficient ◽  
The Relationship

The paper is devoted to the analysis of the arguments of foreign jurists about the nature and advantages of inclusive legal positivism as a legal theory that justifies the existence of moral foundations of the legal system. Examples from judicial practice are considered, as well as key theoretical approaches that reveal the necessary and sufficient features of inclusive legal positivism, as well as its subject specifics and basic provisions on the relationship between law and morality. The paper is prepared within the framework of the HSE research project «Applied Ethics».

scholarly journals IDENTITY IN LAW: THE SECOND MEDICAL USE AND THE DRUGS FOR NEGLECTED DISEASES

2015 ◽  
Vol 3 (3-4) ◽  
pp. 124-142
Author(s):  
Marcos Chein Feres
Keyword(s):  
Property Rights ◽  
Legal Theory ◽  
Methodological Approach ◽  
Chemical Substance ◽  
Neglected Diseases ◽  
Industrial Property ◽  
Institutional Approach ◽  
Legal Concepts ◽  
Point Of Departure ◽  
Second Medical Use

This paper is dedicated to presenting a normative political institutional approach, which may creatively reconstruct the hermeneutics of the Brazilian Industrial Property Rights Act in the specific case of the second medical use of known substances in the matter of drugs for neglected diseases. However, the fact of having the same chemical substance, as a point of departure, might signify that the incremented drug does not fulfil the requisites of patentability according to the traditional legal deduction practised in Brazilian courts. Methodologically, the theoretical reference here applied consists of the fusion between the ideas of law as integrity, developed by Dworkin, and law as identity, complemented by Taylor’s social theory of identity and Bankowski’s proposal of living lawfully. In fact, this methodological approach proposes the reconstruction of a system of analytical concepts based on contemporary legal theory in order to legitimatise public decisions whose purpose is to foster the research and development of drugs for neglected diseases. In this context, the legal concepts of novelty, non-obviousness and industrial application listed in the Brazilian Industrial Property Rights Act are reinterpreted according to the theoretical reference of identity in law. 

scholarly journals IDENTITY IN LAW: THE SECOND MEDICAL USE AND THE DRUGS FOR NEGLECTED DISEASES

2018 ◽  
Vol 3 (3-4) ◽  
pp. 124-142
Author(s):  
Marcos Chein Feres
Keyword(s):  
Property Rights ◽  
Legal Theory ◽  
Methodological Approach ◽  
Chemical Substance ◽  
Neglected Diseases ◽  
Industrial Property ◽  
Institutional Approach ◽  
Legal Concepts ◽  
Point Of Departure ◽  
Second Medical Use

This paper is dedicated to presenting a normative political institutional approach, which may creatively reconstruct the hermeneutics of the Brazilian Industrial Property Rights Act in the specific case of the second medical use of known substances in the matter of drugs for neglected diseases. However, the fact of having the same chemical substance, as a point of departure, might signify that the incremented drug does not fulfil the requisites of patentability according to the traditional legal deduction practised in Brazilian courts. Methodologically, the theoretical reference here applied consists of the fusion between the ideas of law as integrity, developed by Dworkin, and law as identity, complemented by Taylor’s social theory of identity and Bankowski’s proposal of living lawfully. In fact, this methodological approach proposes the reconstruction of a system of analytical concepts based on contemporary legal theory in order to legitimatise public decisions whose purpose is to foster the research and development of drugs for neglected diseases. In this context, the legal concepts of novelty, non-obviousness and industrial application listed in the Brazilian Industrial Property Rights Act are reinterpreted according to the theoretical reference of identity in law. 

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