scholarly journals Problems of Explication of Concepts of Validity and Efficacy of Law in E. Bulygin’s Legal Theory

2019 ◽  
Vol 14 (4) ◽  
pp. 81-107
Keyword(s):  
Legal Theory ◽  
Scientific Work ◽  
Legal Norm ◽  
Dispositional Property ◽  
Judicial Decisions ◽  
Binding Force ◽  
Traditional Notion ◽  
Limited Application ◽  
Technical Sense ◽  
Theory Of Law

Throughout his scientific work, the Argentine lawyer E. Bulygin re-peatedly analyzed the problem of the validity and efficacy of law. Based on the for-mu lations of H. Kelsen’s pure theory of law, E. Bulygin sought to explicate the con-cepts of legal validity and efficacy, i.e. to replace them with new more accurate ones. In the 1965 paper "The Concept of Validity" Bulygin entered into a polemic with H. Kelsen and A. Ross and formulated the concept of efficacy as a dispositional property of the legal norm reflecting its justiciability. Subsequently, however, the Argentine lawyer clarified his terminology and distinguished between the dispositional concept of efficacy (law in force) and the traditional notion of efficacy because of the conclusion on the expediency of using the old concept of efficacy along with the new one defined through justiciability. But the concept of efficacy as justiciability formulated by E. Bulygin faced a number of theoretical difficulties.In the 1966 paper "Judicial Decisions and the Creation of Law" E. Bulygin made an attempt to explicate the concept of validity. E. Bulygin points to three concepts designed to replace the traditional notion of validity: the validity of the norm in the system sense, the binding force of the norm and the existence of the norm. Each of these specified concepts was developed in theoretical constructions of the Argentine lawyer, however their using also generates the problems. Alternatively, the development of the notion of validity of law in the system sense can be considered "definitive" concept of validity proposed by E. Bulygin in collaboration with K.E. Alchourron in the monograph "Normative systems" (1971). However, this concept has significant differences from the originally formulated and has a very limited application. The concept of the existence of the norm does not receive independent development as a variant of the explication of the concept of the validity of law. The concept of the binding force of law, on the contrary, is divided by the Argentine jurist into two fundamentally different concepts — binding force in the metaphysical sense and binding force in the technical sense, which later E. Bulygin called "applicability". The concept of applicability was used by the Argentine legal philosopher to solve a number of problems of H. Kelsen’s theory, however the concept of applicability itself leads to paradoxical consequences.On the whole E. Bulygin’s project of explicating of the concepts of validity and efficacy of the law didn’t result in replacing them with series of new more precise concepts although refined in some way their meaning.

Jerzy Wróblewski’s Legal Theory and His Influence on Humanist Legal Thought

2020 ◽  
Vol 45 (2-3) ◽  
pp. 200-216
Author(s):  
Marek Zirk-Sadowski
Keyword(s):  
System Theory ◽  
Legal System ◽  
Legal Theory ◽  
Analytical Theory ◽  
Legal Norm ◽  
Legal Interpretation ◽  
Legal Philosopher ◽  
Application Of Law ◽  
Theory Of Law ◽  
Law Making

This paper presents Jerzy Wróblewski’s (1926–1990) theory of law. He was an eminent Polish legal philosopher. His philosophical minimalism, anticognitivism, relativism and moderate reconstructivism constitute the basis for analytical theory of law in Poland. He was developing his theory of law over the span of several dozens of years but the assumptions were formulated already in his first work on legal interpretation published in 1959. His paradigm of legal theory includes several areas: the theory of the legal norm, theory of legal interpretation, theory of the legal system, theory of application of law, theory of law-making and the methodology of legal sciences.

Kelsen on legal interpretation

Legal Studies ◽  
1990 ◽  
Vol 10 (2) ◽  
pp. 136-152 ◽  
Author(s):  
Stanley L. Paulson
Keyword(s):  
Legal Theory ◽  
Legal Norm ◽  
Legal Interpretation ◽  
Pure Theory ◽  
Half Century ◽  
Legal Philosopher ◽  
Theory Of Law

A number of writers have invited attention to the fact that Kelsen, in a long and extraordinarily productive career, gave very little attention to questions of legal interpretation. Kelsen's younger colleague in the Vienna School of Legal Theory, Fritz Schreier, himself a legal philosopher of note, remarked in 1929 that the Vienna School had neglected interpretation. Michael Thaler made the same point a half century later, writing that Kelsen devoted himself ‘entirely to an elucidation of the object of interpretation’, that is to say, the legal norm itself, without providing any details on ‘ how interpretation is to be done’. Other recent writers go further: Klaus Adomeit dismisses Kelsen's theory of interpretation as ‘methodological nihilism’ Günther Winkler writes that Kelsen’s theory, although ‘simple’, is both ‘mistaken and misleading’. Indeed, most recent writers who have examined the Pure Theory of Law on questions of legal interpretation take a dim view of Kelsen's work in the field.

Pragmatic Reconstruction in Jurisprudence: Features of a Realistic Legal Theory

2021 ◽  
Vol 34 (1) ◽  
pp. 171-202
Author(s):  
Brian Z. Tamanaha
Keyword(s):  
Twentieth Century ◽  
Coercive Force ◽  
Social Life ◽  
Conceptual Analysis ◽  
Legal Theory ◽  
A Priori ◽  
Planning System ◽  
Universal Feature ◽  
Moral Problems ◽  
Theory Of Law

A century ago the pragmatists called for reconstruction in philosophy. Philosophy at the time was occupied with conceptual analysis, abstractions, a priori analysis, and the pursuit of necessary, universal truths. Pragmatists argued that philosophy instead should center on the pressing problems of the day, which requires theorists to pay attention to social complexity, variation, change, power, consequences, and other concrete aspects of social life. The parallels between philosophy then and jurisprudence today are striking, as I show, calling for a pragmatism-informed theory of law within contemporary jurisprudence. In the wake of H.L.A. Hart’s mid-century turn to conceptual analysis, “during the course of the twentieth century, the boundaries of jurisprudential inquiry were progressively narrowed.”1 Jurisprudence today is dominated by legal philosophers engaged in conceptual analysis built on intuitions, seeking to identify essential features and timeless truths about law. In the pursuit of these objectives, they detach law from its social and historical moorings, they ignore variation and change, they drastically reduce law to a singular phenomenon—like a coercive planning system for difficult moral problems2—and they deny that coercive force is a universal feature of law, among other ways in which they depart from the reality of law; a few prominent jurisprudents even proffer arguments that invoke aliens or societies of angels.

Kelsen – Which Kelsen? A Reapplication of the Pure Theory to International Law

2009 ◽  
Vol 22 (2) ◽  
pp. 225-249 ◽  
Author(s):  
JÖRG KAMMERHOFER
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Pure Theory ◽  
Municipal Law ◽  
Hans Kelsen ◽  
Theory Of Law ◽  
The Right ◽  
Relationship Of ◽  
The Relationship ◽  
Legal Theorist

AbstractHans Kelsen is known both as a legal theorist and as an international lawyer. This article shows that his theory of international law is an integral part of the Kelsenian Pure Theory of Law. Two areas of international law are analysed: first, Kelsen's coercive order paradigm and its relationship to the bellum iustum doctrine; second, the Kelsenian notion of the unity of all law vis-à-vis theories of the relationship of international and municipal law. In a second step, the results of Kelsenian general legal theory of the late period – as interpreted and developed by the present author – are reapplied to selected doctrines of international law. Thus is the coercive order paradigm resolved, the unity of law dissolved, and the UN Charter reinterpreted to show that the concretization of norms as positive international law cannot be unmade by a scholarship usurping the right to make law.

The Persistence of Formalism: Towards a Situated Critique beyond the Classic Separation of Powers

2010 ◽  
Vol 3 (2) ◽  
Author(s):  
Jose R. Rodriguez
Keyword(s):  
Social Relations ◽  
Social Practice ◽  
Legal Theory ◽  
Separation Of Powers ◽  
Academic Research ◽  
The Social ◽  
Critical Legal Theory ◽  
Theory Of Law ◽  
General Method

Formalism persists everywhere despite 100 years of critical legal theory. The reasons for that are sociological and political and include the persistence of the separation of powers idea as a central concept for the theory of law. In Brazil, this phenomenon manifests itself acutely for two supplementary reasons: (1) the lack of a real differentiation between academic research and professional lawyering and (2) the influence of neo-liberal economic thought.The persistence of formalism is a serious problem for Brazilian development since it naturalizes the existing institutions and their related power positions, creating an obstacle to any project of development that proposes something new. It blocks the development of a critical and reflexive knowledge on institutions, shortening institutional imagination to projects that could transform Brazilian reality.The main objective of this article is to develop a critique of formalism useful both as a general method to criticize formalism and as a tool to criticize its Brazilian manifestation. It will be argued here that the critique of formalism fails when it is only theoretical. An efficient critique must also grasp the ideas and the social relations responsible to reproduce formalism as a conceptual idea that informs social practices.To do that, this article will first propose a characterization of Brazilian formalism that does not fit in the Formalism X Instrumentalism dichotomy and is more adequate to grasp how law rationality works in countries from the Continental Law tradition. Afterwards, it will identify the power positions and the respective ideologies responsible to reproduce formalism in Brazil, giving criticism a sociological basis. Finally, it will show that only a positive view of what law should be will able to overcome formalism, both as a philosophical idea and as a social practice. In its final part, a sketch of such a view will be presented.

scholarly journals Hans Kelsen as Outliner: The Defence of a Radical Norm Theory

2021 ◽  
pp. 5-18
Author(s):  
Stanley Paulson
Keyword(s):  
Legal Theory ◽  
Legal Norm ◽  
Norm Theory ◽  
Hans Kelsen

In his first treatise on legal theory, Hauptprobleme der Staatsrechtslehre (1911), Hans Kelsen seeks to recast legal norm theory in a way that would eliminate from the theory the imperative, with what Kelsen sees as its moral connotations. The result, Kelsen’s sanction theory, is not entirely successful. It leaves in place the imperative vis-à-vis legal officials, with obligations imposed on officials to implement sanctions. In the 1930s, Kelsen returns to the issue, radically recasting legal norm theory by introducing empowerment as the fundamental modality and obligation as merely derivative, a view that prevails in the second edition of the Reine Rechtslehre (1960).

scholarly journals The multilingual jurisprudence of the Court of Justice and the idea of uniformity in European Union Law

2019 ◽  
Vol 3 (2) ◽  
pp. 125-138
Author(s):  
Joana Sousa Domingues
Keyword(s):  
European Union ◽  
Mother Tongue ◽  
The European Union ◽  
European Union Law ◽  
Language Version ◽  
Judicial Decisions ◽  
Binding Force ◽  
Legal Translation ◽  
Court Of Justice ◽  
Official Languages

It is generally accepted that the development of a Union of law is largely due to the judicial decisions of the Court of Justice of the European Union (hereinafter, CJEU). With its judicial pronouncements, the CEJEU aims to achieve the same legal effects in every language version of its judgments and, through them, to ensure the uniform application and interpretation of European Union law. Nevertheless, such judicial pronouncements, with normative and binding force, are the result of collegial decisions and drafted by jurists in a language that is usually nottheir mother tongue. In addition, they are also the result of various permutations associated with the necessary legal translation from and to (and vice versa) the working language of the Court and the official languages of the European Union. The published judgments presented as authentic are, in most cases, translations. To understand the construction of decisions of the CJEU is to understand the construction of the European Union law, and by consequence, the European project itself.

scholarly journals Hart's Methodological Positivism

Legal Theory ◽  
1998 ◽  
Vol 4 (4) ◽  
pp. 427-467 ◽  
Author(s):  
Stephen R. Perry
Keyword(s):  
General Theory ◽  
Natural Law ◽  
Legal Theory ◽  
Legal Positivism ◽  
Social Phenomenon ◽  
Modern Times ◽  
Theory Of Law ◽  
Michael Moore

To understand H.L.A. Hart's general theory of law, it is helpful to distinguish between substantive and methodological legal positivism. Substantive legal positivism is the view that there is no necessary connection between morality and the content of law. Methodological legal positivism is the view that legal theory can and should offer a normatively neutral description of a particular social phenomenon, namely law. Methodological positivism holds, we might say, not that there is no necessary connection between morality and law, but rather that there is no connection, necessary or otherwise, between morality and legal theory. The respective claims of substantive and methodological positivism are, at least on the surface, logically independent. Hobbes and Bentham employed normative methodologies to defend versions of substantive positivism, and in modern times Michael Moore has developed what can be regarded as a variant of methodological positivism to defend a theory of natural law.

scholarly journals WHY LEGAL THEORY IS POLITICAL PHILOSOPHY

Legal Theory ◽  
2013 ◽  
Vol 19 (4) ◽  
pp. 331-346
Author(s):  
William A. Edmundson
Keyword(s):  
Political Philosophy ◽  
Legal Theory ◽  
Moral Judgments ◽  
Legal Institutions ◽  
Legal Norms ◽  
Evaluative Judgments ◽  
Adequate Theory ◽  
The Concept Of Law ◽  
Theory Of Law ◽  
Legal Theorist

The concept of law is not a theorist's invention but one that people use every day. Thus one measure of the adequacy of a theory of law is its degree of fidelity to the concept as it is understood by those who use it. That means “saving the truisms” as far as possible. There are important truisms about the law that have an evaluative cast. The theorist has either to say what would make those evaluative truisms true or to defend her choice to dismiss them as false of law or not of the essence of law. Thus the legal theorist must give an account of the truth grounds of the more central evaluative truisms about law. This account is a theory of legitimacy. It will contain framing judgments that state logical relations between descriptive judgments and directly evaluative judgments. Framing judgments are not directly evaluative, nor do they entail directly evaluative judgments, but they are nonetheless moral judgments. Therefore, an adequate theory of law must make (some) moral judgments. This means that an adequate theory of law has to take a stand on certain (but not all) contested issues in political philosophy. Legal theory is thus a branch of political philosophy. Moreover, one cannot be a moral-aim functionalist about legal institutions without compromising one's positivism about legal norms.

A POSITIVIST ROUTE FOR EXPLAINING HOW FACTS MAKE LAW

Legal Theory ◽  
2012 ◽  
Vol 18 (2) ◽  
pp. 139-207 ◽  
Author(s):  
David Plunkett
Keyword(s):  
Recent Work ◽  
Conceptual Analysis ◽  
Legal Norm ◽  
Planning Theory ◽  
Legal Institution ◽  
Frank Jackson ◽  
David Chalmers ◽  
Rational Relation ◽  
Theory Of Law ◽  
Two Stages

In “How Facts Make Law” and other recent work, Mark Greenberg argues that legal positivists cannot develop a viable constitutive account of law that meets what he calls the “the rational-relation requirement.” He argues that this gives us reason to reject positivism in favor of antipositivism. In this paper, I argue that Greenberg is wrong: positivists can in fact develop a viable constitutive account of law that meets the rational-relation requirement. I make this argument in two stages. First, I offer an account of the rational-relation requirement. Second, I put forward a viable positivist account of law that I argue meets this requirement. The account that I propose is a version of Scott Shapiro's Planning Theory of Law. The version of Shapiro's account that I propose combines (1) the account of concepts and conceptual analysis put forward by David Chalmers and Frank Jackson with (2) the account of the conceptlegal institution(and its conceptual connections to the conceptlegal norm) that we get from a certain reading of Shapiro's Planning Theory. In addition to providing a compelling response to Greenberg's argument in “How Facts Make Law,” I argue that the explanation for why my response to Greenberg works underscores one of the central problems facing legal antipositivism: namely, its lack of a convincing account of the nature of legal institutions.

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