scholarly journals The most important problems of legal philosophy and the nature of law

2021 ◽  
Vol 69 (4) ◽  
pp. 773-782
Author(s):  
Tomasz Gizbert-Studnicki

The purpose of legal philosophy is frequently defined as the discovery or exploration of the nature of law. The nature of law is usually understood as a set of necessary properties of law. Such an identification of the purpose of legal philosophy raises some doubts. Irrespective of those doubts, I claim that that focusing exclusively on the nature of law may be detrimental to legal philosophy as a whole, as it may be an obstacle to the investigation of certain issues that seem important. Or, at least, not all fundamental problems of legal philosophy may be perceived as pertaining to the nature of the law. Two such problems are briefly discussed: (i) legal pluralism and (ii) certain new categories of non-human legal subjects, such as autonomous machines, environmental legal persons and animals. I argue that focusing on the nature of law does not help the exploration of those important topics.

2020 ◽  
Vol 8 (06) ◽  
pp. 220-225
Author(s):  
Fauzan Prasetya ◽  
Busyra Azheri ◽  
Ismansyah ◽  
Sukanda Husin

The Government through the Minister of State-Owned Enterprises (SOEs) in his position as a Shareholder in SOEs (Indonesian: Badan Usaha Milik Negara (BUMN) enacts the Minister of SOE Regulation Number: PER-15 / MBU / 2012 Regarding Amendments to the Regulation of the State Minister of State-Owned Enterprises Number PER-05 / MBU / 2008 Regarding Guidelines General Implementation of Procurement of Goods and Services of State-Owned Enterprises in SOE Subsidiaries. Which actions have raised the pros and cons of the capacity of the Minister of SOEs as BUMN shareholders in SOE subsidiaries. The legal status of BUMN subsidiaries in the BUMN holding scheme remains a separate legal entity that has their respective organs and responsibilities as regulated in the Law of PT. When the SOE Minister acts on behalf of the State, he is the shareholder of SOE as contained in Article 1 paragraph (1) of the BUMN Law. As a shareholder, the Minister of SOEs can only establish policies towards SOEs. Whereas in SOE Subsidiaries, the shareholders are SOEs as legal subjects. So that the provisions of Article 1 number (2) SOE Ministerial Regulation Number 3 of 2012 whereby the Minister of BUMN cannot act as a shareholder. The enactment of BUMN Permen 15/2012 to SOE Subsidiaries by SOEs Minister in his capacity as BUMN shareholder is an ultra vires action.


Author(s):  
Devin J. Stewart

This chapter discusses the shari'a, the sacred law of Islam. Law is an essential feature of revealed religion in both the Qur'an and Islamic thought in general, and the term shari'a is used with reference not only to Islam but also to Judaism and Christianity, because all three are conceived as having a divinely given law. According to later jurists, 500 verses of the Qur'an, treat legal subjects, including matters relating to prayer, fasting, alms, pilgrimage, permitted food, marriage, divorce, inheritance, slavery, and trade. This represents roughly one-thirteenth of the sacred text. The chapter covers the law in the books; the source of the law; the two institutions that contributed to making the law central to Islamic societies and creating continuity over space and time: the madhhab, or the legal school and the madrasa, or college of law; legal education and careers; caliphs; judges and muftis; the impact of modernity; and political Islam.


Author(s):  
Denise Meyerson

What is the nature of a court? In this article I argue that we need to know what a court is supposed to do in order to understand what it is. I argue against two conceptions of a court which I call ‘minimalist’ and ‘essentialist’. The former holds that a court is simply a body empowered to make binding resolutions of disputes by applying existing laws. I argue that this conception is incomplete. The latter identifies further essential features of courts, such as the use of fair processes. I argue that the essentialist conception lacks explanatory power. Drawing on the central case methodology in legal philosophy, I introduce a conception that I call the ‘paradigm case conception’. I argue that paradigm courts are not merely empowered to apply the law but equipped to do so, by virtue of possessing features that assist them to resolve legal disputes accurately and effectively (ie, with the public’s acceptance). Courts that do not possess all of these features or possess them to a limited degree are not ‘non-courts’ but defective courts. I explain why the paradigm case conception is theoretically and practically superior to the other conceptions.


2019 ◽  
pp. 163-193
Author(s):  
Gleider Hernández

This chapter describes the law of treaties. As defined in Article 2(2) of the Vienna Convention on the Law of Treaties (VCLT), a treaty can be embodied in a single instrument, or in two or more related instruments. It is a written agreement; between international legal subjects; and governed by international law. In short, a treaty must be written in order to fall under the scope of the VCLT. Though this does not mean that oral agreements have no effect in international law, it does mean that the law of treaties embodied in the VCLT does not govern oral agreements. While States are the most active actors entering into treaty relations, international organizations may also enter into treaties, whether between them or with a State. Ultimately, because a treaty’s purpose is to create binding international legal obligations, the law of treaties applies to agreements governed by international law.


2008 ◽  
Vol 21 (2) ◽  
pp. 429-445 ◽  
Author(s):  
Danny Priel

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.


Hypatia ◽  
2008 ◽  
Vol 23 (3) ◽  
pp. 173-181 ◽  
Author(s):  
Neus Torbisco Casals ◽  
Idil Boran

Originally, the idea of interviewing Iris Marion Young in Barcelona came about after she accepted an invitation to give a public lecture at the Law School of Pompeu Fabra University in May 2002. I had first met Iris back in 1999, at a conference in Bristol, England, and I was impressed deeply by her personality and ideas. We kept in touch since then and exchanged papers and ideas. She was very keen to come to Spain (it seems that her mother had lived some years in Mallorca) and she finally travelled to Barcelona with her husband and daughter in spring 2002.The lecture, which she entitled “Women, War, and Peace,” was meant to be the closing session of a course on Gender and the Law, and was also part of a series of seminars annually organized by the legal philosophy department (the Albert Calsamiglia Seminar). Her work was quite well-known among several Catalan philosophers and political scientists and professor Angel Castiñeira—who, at the time, was the director of Idees (Ideas), a Catalan journal published by the Centre d'Estudis de Temes Contemporanis (Center for the Study of Contemporary Issues)—suggested that she could give a second lecture, which they would publish together with an interview I could prepare. She accepted both proposals, and I started to think of a questionnaire for the interview while I was at Queen's University in Canada earlier that year. Idil Boran, a philosopher and good friend who did her doctorate at Queen's, offered to help me with this endeavour, since she also admired Iris as both a scholar and a person. Together we prepared the questions and sent them to her once she was back in Chicago, as there was not time to conduct the interview in person while she was in Barcelona.In fall 2002, she sent some answers to our questions, but the document was unfortunately incomplete. She was busy at the time, so we didn't want to pressure her to finish the interview. Eventually, the editors of Idees decided to publish the manifest about the war in Iraq subscribed by a large number of American Intellectuals together with fragments of Iris's (antiwar) lectures and an article that she wrote together with Daniel Archibugi, “Envisioning a Global Rule of Law.”1 The interview was thus left unpublished. Both Idil and I thought it would be worthwhile to publish it somewhere else, but, for one reason or another, Iris didn't have the time to complete it and we kept postponing the project. At some point, she said that the questions she left unanswered were too complex or challenging to give a short or quick answer, and that she would need to reflect on them to provide detailed responses.Later, we learned she was ill and we didn't feel it was right to insist on those questions being answered. The issue came up again when she accepted to participate as a keynote speaker at the World Congress of Legal Philosophy held in Granada in June 2005. She then said she would come first to Barcelona (where she and Nancy Fraser had been invited to a workshop by the Catalan Women Institute) and suggested we could sit in a cafe and talk about the issues left out in those unanswered questions. Unfortunately, she had to cancel this trip because of her medical treatment, and I did not have the privilege of sharing time with her again. The following series of questions and responses are the product of this rather extended interview process.Neus Torbisco Casals


1996 ◽  
Vol 55 (3) ◽  
pp. 456-469 ◽  
Author(s):  
John Tasioulas

Martha Nussbaum's recent article “Equity and Mercy” eloquently advocates the continued relevance of a tradition of ethical and legal thought—the “equity tradition”—that has been neglected by legal philosophers in recent times. That neglect is partly due to the fact that contemporary legal philosophy (as in the debate between H.L.A. Hart and Ronald Dworkin) has concerned itself with the prior question of whether judges should or need to exercise discretion. The equity tradition presupposes an affirmative answer to that question where the rigorous application of a law yields a sufficiently grave injustice in the circumstances of a particular case or where such an injustice would arise because of a “gap” in the law. Yet it might have been thought prudent for those who assert the ineradicability and value of adjudicative discretion to have embraced and developed the idea of equity.


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