scholarly journals Contra o Conceito do Direito: Ontologia e Epistemologia no Problema da Definição do Direito

2018 ◽  
Author(s):  
Ítalo Oliveira
Keyword(s):  
Legal Theory ◽  
Scientific Activity ◽  
Point Of View ◽  
Epistemological Problem ◽  
Specific Object ◽  
Advance Research ◽  
The Concept Of Law ◽  
Definition Of ◽  
Ontological Problem ◽  
Concept Of Law

The problem of definition of the concept of law or at least the description of features of legal phenomenon presents variation about the implications of its solution and about the worries around it. The forms of this problem I am interested in are related to ontology and epistemology in legal philosophy: ‘What is the law?’ as (1) a question about the definition of the essence of law and (2) about the definition of a specific object of investigation for sciences about the supposed legal phenomenon – philosophy of law, legal theory, and science of law, for instance. Challenging its premises and trying to avoid both the ontological problem and epistemological problem, I propose a change of perspective from pragmatic concerns what I call the “manager's point of view”: a vision of who should manage the finite economic resources to finance scientific activity in the area of law. I argue that, starting from there, the problem of defining the concept of law as an ontological problem and as a epistemological problem is an unnecessary problem whose solution is useless to advance research in the field of law. I propose a reorientation of the controversy that has implications on how to see the researches and the education in this field.

scholarly journals The Question To Be Faced Is One of Fact: H.L.A. Hart’s Legal Theory Through His View of International Law

2021 ◽  
pp. 1-13
Author(s):  
Giovanni Bisogni
Keyword(s):  
International Law ◽  
Legal System ◽  
Legal Theory ◽  
Borderline Case ◽  
Borderline Cases ◽  
Central Case ◽  
The Concept Of Law ◽  
Domestic Law ◽  
Concept Of Law

H.L.A. Hart says that The Concept of Law is focused on municipal or domestic law because that is the “central case”1 for the usage of the word ‘law.’ At the beginning of the book he states that “at various points in this book the reader will find discussions of the borderline cases where legal theorists have felt doubts about the application of the expression ‘law’ or ‘legal system,’ but the suggested resolution of these doubts, which he will also find here, is only a secondary concern of the book.”2 Yet among those borderline cases there is one that is rather intriguing, since Hart closely discusses a particular instance of them: it is international law, to which he devotes an entire chapter—the final one—of The Concept of Law. My goal in this article is therefore to make clear why the ‘resolution’ of the borderline case of international law is not entirely ‘secondary’ to Hart’s overall project in The Concept of Law and, in so doing, to show that Chapter X is not as unhappy as many think it is.

scholarly journals What is Offered to the Modern Science by Leon Petrażycki? (Following Three Descriptions of Legal Principles)

Studia Humana ◽  
2018 ◽  
Vol 7 (3) ◽  
pp. 5-10
Author(s):  
Sławomir Tkacz
Keyword(s):  
Legal Theory ◽  
Modern Science ◽  
Theoretical Knowledge ◽  
Legal Principles ◽  
Current State ◽  
The Concept Of Law ◽  
Concept Of Law

Abstract The aim of this paper is to outline the general oversight of the concept of law in Leon Petrażycki’s legal theory. On the example of the principles of law, an attempt was made to answer the question, what Petrażycki’s theory proposes to modern science. In the first part of the presentation, the Author presented the current state of theoretical knowledge in the field of principles of law. The attention was paid to the problem of various characteristics of legal principles. In further considerations, an attempt was made to answer the question about adoption of models proposed by Petrażycki in the contemporary theoretical discourse. The summary presents general conclusions of the paper.

Conceptual Theories of Law and the Challenges of Global Legal Pluralism

2020 ◽  
pp. 317-338
Author(s):  
Wibren van der Burg
Keyword(s):  
Legal Pluralism ◽  
Family Resemblance ◽  
Legal Philosophy ◽  
General Definition ◽  
Legal Obligations ◽  
The Concept Of Law ◽  
Definition Of ◽  
Conceptual Pluralism ◽  
Pluralist Approach ◽  
Concept Of Law

One of the perennial discussions in legal philosophy is: What is law? Theories that elucidate the concept of law and provide definitions may be called conceptual theories of law. For such conceptual theories, global legal pluralism presents at least four major challenges. First, it recognizes a wide variety of types of law. Second, it recognizes a wide variety of law-producing actors. Third, it accepts that legal orders may gradually emerge. Fourth, legal orders overlap and are intertwined in many ways. We may discern three different strategies to deal with these challenges: monist, relativist, and pluralist. This chapter defends a pluralist approach, namely legal interactionism. It builds on American pragmatism, especially on the work of Lon Fuller and Philip Selznick. Legal interactionism recognizes interactional law as a source for legal obligations, but also accepts that contract and enacted law may constitute relatively autonomous legal orders in their own right. This chapter focuses on how it implies conceptual pluralism and definitional pluralism, and then discusses how this enables it to deal adequately with the four challenges global legal pluralism presents. Legal interactionism emphasizes that the concept of law is plural in character and can best be analyzed in terms of a dynamic family resemblance. If there is not one unified concept of law, but a plurality of defensible, partly incompatible conceptions, there cannot be one general definition of law.

Diritto e natura a Oxford: il caso di H.L.A. Hart

2009 ◽  
pp. 181-192
Author(s):  
Carolina Gasparoli
Keyword(s):  
Natural Law ◽  
Legal Theory ◽  
Ronald Dworkin ◽  
Oxford University ◽  
Starting Point ◽  
Philosophical Background ◽  
The Concept Of Law ◽  
Concept Of Law

- Hart is one of the most prominent philosophers of law of the last century. Published in 1961, his book The Concept of Law has influenced many of the leading figures in contemporary legal theory. Hart held the Chair of Jurisprudence at Oxford University from 1952 until 1968 and he chose Ronald Dworkin as his successor. In his last book Diritto e natura. H.L.A. e la filosofia di Oxford, Mario Ricciardi takes the uneasy relationship between the two philosophers as the starting point of his inquiry and claims that Dworkin's critique of Hart's legal theory has misinterpreted many relevant aspects of Hart's approach to law. As a result, many scholars have paid little attention to the cultural and philosophical background of Hart's work. In particular, Ricciardi suggests that, in this work, Hart uses a specific notion of analysis, namely connective analysis, which Gilbert Ryle and Peter F. Strawson had opposed to the decompositive one. Such a reading of The Concept of Law generates a new understanding of the role played by the minimum content of natural law in Hart's legal theory.

The Basic Concept of Professor Hart's Jurisprudence

1963 ◽  
Vol 21 (2) ◽  
pp. 270-303
Author(s):  
B. E. King
Keyword(s):  
Solar System ◽  
Basic Concept ◽  
Point Of View ◽  
The Other ◽  
The Concept Of Law ◽  
John Austin ◽  
Concept Of Law

There are but a few days—of who shall say what importance—between the Julian and Gregorian calendars, considered as schemes for the interpretation of recurrent movements in our solar system. And yet, from the point of view of each, the other seems somewhat out in respect of the characterisation of nearly every year, month, week and individual day. The gap between the legal theories of John Austin and Professor Hart—between their models of the legal universe—is somewhat more than this. Its demonstration provides the foundation for Professor Hart's new book. But there may here be some analogy to what divides the concept of law, as elucidated by Professor Hart in terms of rules, from the concept of law as a system of action constructed by the writer in earlier numbers of this Journal. If Professor Hart now reveals himself as conceptual pragmatist as well as linguistic philosopher the writer's gratitude to Professor Hart in the latter capacity is only tinged with regret that he does not display greater boldness in the former.

scholarly journals Interest and Need: Critical Look at their Identification in Russian Law

Lex Russica ◽  
2020 ◽  
Vol 73 (10) ◽  
pp. 91-105
Author(s):  
A. G. Malinova
Keyword(s):  
Law Enforcement ◽  
Legal Theory ◽  
Well Being ◽  
Point Of View ◽  
Equal Sign ◽  
Direct Identification ◽  
Legal Concept ◽  
Psychology And Law ◽  
Russian Law ◽  
Definition Of

Based on a critical analysis of the doctrinal definitions of the concept of "interest" in sociology, psychology, and law, it is concluded that the prevailing point of view in modern Russian legal theory, i.e. "interest is a conscious need to satisfy a need", is wrongly absolutized. Excessive psychologization of modern legal definitions of interest leads to a direct identification of interests with needs, puts an equal sign between these far from close concepts. It is shown that the widespread use of psychological terminology in legal definitions of interest (In particular, the terms "awareness" and "comprehension"), does not bring any "freshness" in legal knowledge about interests. The vast majority of phenomena, objects, and events in everyday and scientific speech are not considered to be conscious, since the awareness of these phenomena is self-evident. The doctrinal definitions of interests that exist in legal science and highlight their "awareness" as the main feature are practically unsuitable for law enforcement. The author substantiates the conclusion that the widely used legal concept of "interest" needs to be freed from the excessive psychologization of its many meanings, which will, in turn, free itself from the understanding of a conscious need as the only reason for the emergence of interest. It is suggested that the definition of "interest" should be formulated not on specific types or often synonymous meanings of this concept, but on generalizations of a higher order — such as could organically include all currently existing definitions of interest. Only universals can do this. And such a universal is the concept of "well-being".

Stanisław Ehrlich’s Critique of Legal Dogmatics: Then and Now

2020 ◽  
Vol 45 (2-3) ◽  
pp. 314-333
Author(s):  
Wojciech Zomerski
Keyword(s):  
Rule Of Law ◽  
Legal Theory ◽  
Theoretical Background ◽  
Point Of View ◽  
Eastern European ◽  
Critical Thought ◽  
External Point ◽  
The Law ◽  
The 1960S ◽  
Concept Of Law

The main aim of this paper is to reconstruct Stanisław Ehrlich’s critique of legal dogmatics by which he understood a legal discipline that explains in a systematic manner the normative material which consists of description, classification and systematization of norms. As an additional aim of this article is to remind about Ehrlich’s achievements and contribution to the regional legal theory, this is preceded by the author’s biographical note. The reconstruction of Ehrlich’s critique of legal dogmatics consists of three elements. Firstly, I discuss the author’s understanding of legal dogmatics and attitude towards it in the context of the domestic legal theory. Secondly, I consider the theoretical background of Ehrlich’s critique of legal dogmatics and I argue that it might be seen as a part of three broader threads in the author’s writings: realism, decision-focused concept of law and pluralism. Finally, I reconstruct Ehrlich’s critique of legal dogmatics formulated in the 1950s and in the 1960s. This is followed by a brief summary and consideration of Ehrlich’s possible application in the broadly understood legal theory. I shall argue that Ehrlich’s critique of legal dogmatics and his realistic concept of law might be interesting for all who examine the law in its broader social context, looking at it from the external point of view, adopting critical as well as post-analytical attitudes towards the law. As possible fields of Ehrlich’s application, I identify ongoing discussions on rule of law, legal education, adjudication and judicial formalism. I shall also argue that Ehrlich’s realistic concept of the law remains an interesting piece of Central Eastern European critical thought.

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