Revitalization of Radbruch's formula in the theory of Robert Alexy

In trying to unravel the quandary of the concept of law, Robert Alexy stipulated some sort of an eclectic non-postivistic theory of law which consists of three arguments: from Correctness, Injustice and Principles. He believes in the possibility of a rational justification of objective morality, which he incorporates into the aforementioned three arguments, claiming that law and morality are conceptually connected. This paper will question the limitations of such an approach. The Argument from Correctness states that no system can be considered to have a legal nature if it does not claim correctness, while it will be seen as defective if it does claim, but does not fulfill correctness. On the other hand, the Argument from Injustice is an addition to the previous thesis, through the revitalization of the Radbruch Intolerability and Disavowal Formula – subtracting legal nature from extremely unjust norms. The paper evaluates main objections pointed towards such a conception of law, as well as general problems which may occur within the Arguments from Correctness and Injustice.

Practice and Theory in The Concept of Law

This chapter challenges the widely held assumption that H.L.A. Hart endorsed a fatally flawed theory of rules known as ‘the practice theory’. In the first section I lay out the practice theory. The second section marshals evidence of the theory’s inconsistency with central aspects of Hart’s understanding of law, in particular his insistence on the distinction between the validity and efficacy of legal rules. In Section 3 I revisit the passages of The Concept of Law from which the practice theory is ostensibly culled and suggest an alternative. Finally, in Section 4, I consider some of the methodological implications of Hart’s style of argument and what it says about the importance or not of conceptual analysis in legal philosophy.

IS AUSTIN'S THEORY INCONGRUENT WITH EXISTING CONCEPTS OF SOVEREIGN AND DISPUTE SETTLEMENT IN TREATIES AND INDIAN LEGISLATION?

For his bold declaration that international law is not "true law" since there is no sovereign, John Austin has been extensively attacked and praised in equal measure. According to Austin, the concept of law is, “Law is a command of the sovereign backed by a sanction.” This study investigates Austin's viewpoint and evaluates it in light of current legal systems, present international law, modern Indian laws, and the analysis of legal issues in the treaty law. While Austin's viewpoint was correct in terms of the legal systems of his day, it cannot be applied to the current international, and Indian legal system

Legitimacy, Signature and Sovereignty in Derrida

Legitimacy is a concept that has been largely forgotten by the deconstructive discourse on law and politics. This article seeks, on the one hand, to reassess the role of legitimacy in deconstruction and, on the other hand, to bring deconstructive thinking to bear on the concept of legitimacy. By re-reading Derrida’s “Declarations of Independence” through the lenses of his later texts on sovereignty and (counter)signature, it is argued that, rather than being deconstructible, legitimacy is deconstructing any self-founding of law and power. As such, legitimacy functions not as an evaluative concept of law and order but as a constantly insisting demand that facilitates the principles of responsibility and responsiveness.

Komu służy prawo? Libertariańska koncepcja Alberta Jaya Nocka

<p>Albert Jay Nock (1870–1945) was a prominent opinion journalist of the first half of the 20^th century, considered a representative of the first generation of libertarianism. The article is aimed at finding an answer to the question: Whom – according to Nock – does law serve? A key element of the problem is the internal dichotomy of the concept of law, which not only can be seen through the prism of the positivist-legal paradigm, but also constitutes the pillar of the jusnaturalistic concept. To properly arrange the object of study, the thesis was used according to which in Nock’s doctrine the existence of radically different assessment of the nature of man and his individual goals from the nature of the functioning of the State allows us to demonstrate the dichotomy of two opposing legal orders that serve the welfare of different entities (the individual and the State). To systematize the argument, the concept of the individual and his relations with the State was first presented, and then the dichotomy of the government and the State was discussed, which ultimately finally allowed to analyze the relationship between natural law and positive law.</p>

KIEDY PRAWO NIE SPEŁNIA FUNKCJI KOMUNIKACYJNEJ – KRYTYKA MONOLOGICZNYCH RELACJI SPOŁECZNYCH W ŚWIETLE DIALOGICZNEJ KONCEPCJI PRAWA

The article deals with the problem of monological social relations as related to the conception of law that does not meet the communication criterion. The analysis is based on the dialogical concept of law and, correspondingly, on Arendt’s notion of the Athenian polis, Gadamer’s hermeneutics, Habermas’s theory of communicative action, Honneth’s theory of recognition, Foucault’s critique of monological society, and Fuller’s morality of law. The most important thesis is that the ethical condition of law fulfilling the communicative function is the recognition of the dialogical subjectivity of a human being and its participation in the constitution of law.

The Concept of Positive Law and Its Relationship to Religion and Morality

Can the concept of law be extended to other times and places in which the concept as understood in most countries and societies today—as a system of norms centred on a nation state, based on a constitution, formulated through codified legislation and judicial precedents, administered by lawmakers for its inception and judges for its implementation—simply did not exist? My contention is that such an extension is, at best, useless and, at worst, misleading. Producing an intelligible jurisprudence of the concept of law means keeping it within the reasonable boundaries of what is ordinarily understood by both lay and professional people when practising ‘the’ law. Developing a socio-historical jurisprudence of law, as distinct from other normativities, entails a threefold analysis: conceptual, historical, and praxiological. Following the ground broken by analytical philosopher Ludwig Wittgenstein, conceptual analysis engages in the exposition of the grammar through which concepts acquire their signification and are meaningfully used. In a manner inspired by philosopher of science Ian Hacking and by historian Reinhart Koselleck, historical analysis emphasizes the description of the birth, development, and use of concepts. Drawing on the work of sociologist Harold Garfinkel, praxiological analysis describes the practical methods used by people to make sense of their environment, to produce their local order, and to act accordingly. The three approaches converge in their insistence on adopting the endogenous/indigenous perspective towards social life and its production.

FRAGMENTOS SOBRE A OBRA THE FORCE OF LAW DE FREDERICK SCHAUER

Em 2015 o jurista norte-americano Frederick Schauer publicou a obra The Force of Law, cujo teor não omite, desde o princípio de seu texto, que seu anseio ao escrevê-lo era opor-se à concepção proposta pelo estudioso inglês Herbert L. A. Hart no livro The Concept of Law, lançado em 2012, de que a natureza do Direito não abrange o componente coercitivo. Em The Force of Law é exposto que a coerção é o único componente do Direito usado até mesmo pelas democracias mais desenvolvidas a fim de que se garanta o cumprimento de seus próprios atos normativos. Entretanto, de acordo com o raciocínio perpetrado na obra, é um fato empírico que os indivíduos muito raramente obedecem à lei meramente por deferência à sua autoridade. O presente artigo se propõe a apresentar considerações sobre o livro, tomando como referência não apenas seu texto, mas publicações científicas relacionadas.

Gustav Radbruch’s Concept of Law

In the twentieth century, two legal philosophers in the German-speaking countries excelled over all the others and their philosophies remain topics of lively debate in the global discussion today: Hans Kelsen and Gustav Radbruch. Kelsen was a positivist. The classification of Radbruch is contested. According to the discontinuity thesis, Radbruch was a positivist before 1933 and became a non-positivist after 1945. According to the continuity thesis, Radbruch always was a non-positivist. I defend the continuity thesis in this chapter. The basis of the argument presented here is the distinction between super-inclusive and inclusive non-positivism.