Contemporary Legal Philosophy Research Articles

Vůle a její relevance pro právní filozofii

The article deals with the will and related legal issues. It first discusses the historical development of the concept of will and then looks at other issues relating to it, such as its freedom. It shows the different ways in which the definition of will has been approached, and also explains how contemporary scholarship has approached the question of its freedom. In particular, the text mentions the problem of personhood as one that is related to the question of the will in contemporary legal philosophy. To be able to grant rights to someone (whether human rights in the sense of moral rights or subjective rights in general), some theories recognize as a relevant criterion precisely the will of the agent, or also its freedom. The author argues, however, that we have neither a clearly accepted definition of the will nor a generally accepted explanation regarding its freedom. This then generally puts us on thin ice when we base theories of legal personhood or laws that affect peopleʼs lives on this concept.

Hart on Legal Powers as Legal Competences

AbstractThis paper first recapitulates the objections by H.L.A. Hart to the ways in which John Austin’s command model of law obfuscated the importance and the very existence of power-conferring laws. Although those objections are familiar in the world of contemporary legal philosophy, their insightfulness is highlighted here because they contrast so sharply with Hart’s own neglect of power-conferring laws at some key junctures in his theorizing. In the second half of this paper, I ponder a few of the junctures where Hart failed to heed the admonitions which he had so deftly leveled against Austin.

In defense of voting method publicity

ABSTRACT The ideal of publicity plays an important role in contemporary legal and political philosophy. Yet, to date, it has not been brought to bear on the question of voting method choice. This paper aims to fix this. I argue that voting method publicity is a well-motivated requirement which reveals tradeoffs inherent to democracy between procedural and epistemic equality. I further explore the implications of voting method publicity to the normative status of plurality voting and its possible alternatives.

Legal Positivism and the Moral Origins of Legal Systems

AbstractLegal positivists maintain that the legality of a rule is fundamentally determined by social facts. Yet for much of legal history, ordinary officials used legal terminology in ways that seem inconsistent with positivism. Judges regularly cited, analyzed, and predicated their decisions on the ‘laws of justice,’ which they claimed had universal legal import. This practice, though well-documented by historians, has received surprisingly little philosophical attention; I argue that it invites explanation from positivists. After taxonomizing the positivist’s explanatory options, I suggest that the most viable option appeals to conceptual change: classical Romans, early modern Europeans, and founding-era Americans were not using ‘law’ (or ‘lex’ or ‘jus’) to refer to the subject matter of contemporary legal philosophy. But the strategy is costly. It renders positivism’s truth surprisingly parochial. And it supplies new reasons for doubting positivist accounts of contemporary practices, including the treatment of moral principles in modern adjudication.

The Moral Wrong of Colonialism: A Non-Instrumentalist Approach

Whether colonialism involves an intrinsic moral wrong or not happens to be an important question in contemporary political and legal philosophy. If colonialism is understood as a system that necessitates some form of intrinsic moral wrong then the process of epistemic decolonization can freely repeat the patterns of political relations prevailing in colonial regimes. However, understanding colonialism from a non-instrumentalist approach guides us to take a different path in the process of decolonization. This approach mandates for discontinuation of the wrongful political relation that was prevalent in colonial world. This article stands for a non-instrumentalist approach towards colonialism and regards the system of colonialism as intrinsic wrong. To that end, it challenges the predominant discourses that portray the wrong of colonialism from an instrumentalist approach. Moreover, it introduces new arguments to support Lea Ypi’s non-instrumentalist approach to the wrong of colonialism.

Back to Hart

The essay addresses two different senses of important “problems” for contemporary legal philosophy. In the first case, the “problem” is having forgotten things we learned from H.L.A. Hart, and, partly as a result, encouraging pointless metaphysical inquiries in other directions that take us very far from questions about the nature of law and legal reasoning. In the second case, the “problem” is to attend more carefully to Hart’s views and his philosophical context to think about the problem of theoretical disagreement, and to understand the way in which later commentators have misunderstood his behaviorist (Rylean) analysis of “accepting a rule from an internal point of view.”

Back to Hart

The essay addresses two different senses of important “problems” for contemporary legal philosophy. In the first case, the “problem” is having forgotten things we learned from H.L.A. Hart, and, partly as a result, encouraging pointless metaphysical inquiries in other directions that take us very far from questions about the nature of law and legal reasoning. In the second case, the “problem” is to attend more carefully to Hart’s views and his philosophical context to think about the problem of theoretical disagreement, and to understand the way in which later commentators have misunderstood his behaviorist (Rylean) analysis of “accepting a rule from an internal point of view.”

Promoting the rule of rationality over positive law and legal thinking

The paper makes the following claims. First, the most important problem for contemporary legal philosophy is contrasting the morally disgusting state of the world. Second, qua jurisprudents, the problem must be dealt with indirectly. Third, the indirect way of dealing with the problem requires pursuing the goal of promoting the rule of reason, the dominance of rationality, over law and legal thinking. Fourth, such an overall goal is to be pursued by breaking it down into five more specific goals: namely, promoting the epistemic, methodological, conceptual, instrumental, and substantive rationality of law and/or legal thinking. Fifth, pretentious and idle ways of doing jurisprudence must be put aside.

Hart on Legal Powers as Legal Competences

This paper first recapitulates the objections by H.L.A. Hart to the ways in which John Austin’s command model of law obfuscated the importance and the very existence of power-conferring laws. Although those objections are familiar in the world of contemporary legal philosophy, their insightfulness is highlighted here because they contrast so sharply with Hart’s own neglect of power-conferring laws at some key junctures in his theorizing. In the second half of this paper, I ponder a few of the junctures where Hart failed to heed the admonitions which he had so deftly leveled against Austin.

On hating and despising legal philosophy

This article is a cry for help. It is a search for some possible view of legal philosophy that does not render it either intrinsically useless or useless in its current form. In this article I focus on two methodological hallmarks of contemporary anglophone legal philosophy. The first is the Archimedean way in which the legal theorist places a critical distance between him- or herself and the subject matter of the philosophical inquiry. The second is the introverted way in which the accuracy of any given legal theory is confined to the theorist’s own puzzles, concerns, controversies, and preoccupations. Whilst I consider those who have turned against these methodological commitments and called for an anti-Archimedean or extroverted approach to legal theory, I explain how those who accept both commitments adopt a very modest view of the helpfulness of legal philosophy. I then consider whether, contrary to the modest view, if we accept both commitments, then whatever is true in legal philosophy will always be trivially true, irrelevant, or inconsequential, for any non-philosophical practice or non-philosophical inquiry about the law. The value of this article, I hope, lies in its refutation.

Are There Global Obligations to Assist in the Realization of Socio-Economic Rights?

This Article focuses on global obligations to assist in realizing socio-economic rights, which represent a missing element in existing international human rights law. They are neither understood correctly in human rights theory and discourse nor acknowledged and implemented in international legal order. Contemporary mechanisms for assistance are insufficient, inefficient, and often violate human rights. Accountability bodies capable of holding multiple actors responsible for their breaches of obligations to assist are lacking. Since global obligations to assist are indispensable for reducing extreme poverty and inequality, as well as empowering the most vulnerable individuals and societies, the justification, conceptualization, and furtherance of such obligations is a task of paramount significance. In a time of pandemic, an efficient global system of assistance is more important than ever. On the basis of normative principles that are defended in contemporary legal and political philosophy and embedded in human rights law, the Article proposes a coherent and plausible framework for reconstructing international human rights law regulating obligations to assist. It develops a legal-philosophical justification and outlines a legal conception of global human rights obligations to assist. Following that, it critically assesses human rights instruments governing obligations of assistance, detects gaps, and suggests improvements. The Article also examines existing mechanisms used to implement obligations to assist and their critique, formulates recommendations on how current institutions and practices of assistance might be fortified, and sketches some important features of a global institutional design necessary for the realization of global obligations to assist.

현대 법철학에 있어서 국가론의 기본적 구조와 문제점 - 정의론에서 자유와 평등의 위치에 대한 고찰을 통해 -

일반적으로 자유와 평등은 트레이드오프의 관계이다. 너무 자주 자유를 중시하면 개인 간의 차이가 커지고 이윽고 격차가 되어 불평등이 된다. 한편, 평등을 중시하면 개인의 자유로운 활동을 제한하지 않을 수 없게 된다. 오늘날 사회에서는 남녀 간 차별, 세대 간 격차, 교육제도, 의료제도, 복지제도 등의 모든 사회문제에 있어서, 어떻게 자유와 평등의 균형을 취해야 하는지, 이러한 물음에 대해 누구나 납득할 수 있는 답을 도출해 낼 수 있는 사회규범이 필요하다고 할 수 있다. 본고에서는 이 사회규범의 방향성에 대해 논한다. 논의를 위하여 미국의 철학자 존 롤스가 1971년에 저술한 “정의론”을 참고하기로 한다. 롤스의 정의론은 자유와 평등의 양립을 목표로 한 사회의 규범적 원리로 오늘날 다양한 논자에 의해 옹호, 비판 각각의 입장에서 다양한 논의가 전개되고 있다. 본고에서는 롤스의 정의론의 설명을 중심으로 자유와 평등의 바람직한 위치를 검토해 나가고자 한다.BR 이를 위해 우선, 정의에 대한 일반적인 의미와 본문에서 다루는 정의와의 차이를 정리한다. 그리고 롤스의 정의론이 탄생한 배경이나 그 의의를 설명하고, 정의론의 이론 골격을 요약한 형태로 제시한다. 다음으로 롤스의 정의론에 있어서 중심개념, 정의의 2가지 원리나 원초상태, 무지의 베일 등을 구체적으로 설명한다. 그리고 지금까지 설명해 온 롤스의 정의론에 대해 리버타리아니즘의 입장에서 비판했던 로버트 노직의 이론, 주로 국가론, 권원이론 등을 제시한다. 마지막으로 롤스와 노직의 정의론을 임마누엘 칸트의 인격론을 매개로 검토하겠다. 그리고 칸트적 해석의 관점에서 어느 쪽의 정의론이 우수한지 결론짓는다.BR 롤스의 정의론은 그것이 발표된 직후부터 다양한 비판을 받은 것으로 널리 알려져 있다. 정의에 대한 논의를 펼칠 수 있는 것은 국가 내에 사회 구성원으로서 존재하는 주체가 인격적으로 인정되기 때문이다. 정의에 대한 논의는 국가와 사회의 구성원이라는 공동체에 속하는 주체가 서로 다른 사람도 자신과 동일하게 인정되는 인격적 주체라고 승인하지 않을 수 없는 논의의 구조가 가능하다는데 의미가 있다. 정의론을 탐구하는 목적은 이 점에 대한 이해를 하는 것에 있다고 생각된다. 스스로의 주장이 결코 독단적인 것은 아니고, 타인의 주장도 정당하다고 생각하면서, 인간을 특정의 종교적, 정치적인 질곡에서 해방시키고 자유, 평등, 공정, 정의라는 보편적인 가치에서 평가해야 한다는 열린사회의 가능성을 이해하는 것이다. 이와 같은 기능이 정의론이 내포한 학문적 가치이며, 그 논의의 실익은 우리가 가치관의 대립이라는 일견 해결할 수 없는 상호부정을 배제하고 생각의 차이를 다툼으로 삼지 않고 생산적이며 합리적인 논의를 거쳐 인정할 수 있게 된다는 점에 있다.

Human dignity as a universal legal value

The purpose of the article is to substantiate the thesis about human dignity as the initial and universal legal value. The investigation belongs to philosophical and legal anthropology and axiology. In the process of research, phenomenological and analytical methods in their unity and complementarity were used. The article draws attention to the tendency of increasing interest to the value component of law in contemporary legal philosophy and doctrine. Traditionally, justice is recognized as the main legal value embodying the high purpose of law. It is a complex value and embodies a certain ratio of no less universal legal values based on human experience, such as human dignity, freedom and equality. Since the mid-twentieth century, human dignity has become the “new key concept” for law. This was due to the desire to prevent a recurrence of the state of barbarism – massive and large-scale humiliation of it during the Second World War. As an expression of a person’s intrinsic value, his subjectivity, human dignity is considered as a value basis of human rights as a whole, as well as an independent right, the inviolability of which is enshrined in the fundamental international documents and constitutions of developed countries. It finds protection in the practice of national Constitutional Courts (primarily the German Federal Constitutional Court), the European Court of Human Rights and other legal institutions. The ethical priority of dignity in the system of legal values emphasizes the universality of human rights, which are based on the initial and unconditional recognition of the other in his uniqueness, regardless of his belonging to a particular community.

A Quasi-Contract Theory of Political Obligation

Whether there is a general moral obligation to obey the law, often referred to as ‘political obligation’, is an enduring question in contemporary legal and political philosophy. Theories are continually being formulated, criticized, and reformulated as theorists attempt to settle this issue. However, there yet remains no general consensus as to whether any theory successfully answers this question in either the affirmative or the negative. I propose the legal doctrine of quasi-contract as a candidate for making sense of this persistent issue. While the duty to reciprocate and the principle of reasonable expectations each falls short when independently advanced as a theory of political obligation, quasi-contract, which combines reciprocity, reasonable expectations, and additional moral considerations, is able to establish a satisfactory account of political obligation.

Tragic Cases: No correct answer?

The aim of the current article is to analyze the concept of tragic cases and its different implications based on Manuel Atienza, one of the jurists who specially addressed the issue, and on Robert Alexy, whose work is one of the main references in contemporary Legal Philosophy. According to parameters exposed by Alexy (correctness, rationality, legal argumentation, human rights), some of Atienza’s central assertions about tragic cases (lack of correct answer, legal rationality limitation, option for the lesser evil) are herein demonstrated as inadmissible. Based on Alexy’s work, it is possible to justify the opposite conclusion about tragic cases, i. e., cases where there is more than one correct answer and these answers are opposed to each other.

What’s left of general jurisprudence? On law’s ontology and content

ABSTRACTThe aim of this paper is to show that general jurisprudence is in no need of reinvention. The sentiment shared by many contemporary legal philosophers that theories about the nature of law have reached a dead end is challenged here by showing that the debates about the ontology of law and about the determinants of legal contents leave many interesting questions open for serious debate. The paper argues that traditional legal positivism is best seen as a theory about the ontological grounding of legal facts, and that a reductive account of this grounding can be provided with a more sophisticated account of the artefact nature of law, aided by some ideas derived from fictionalism. The paper also acknowledges that such a reductive ontology of law faces serious challenges, particularly from the view point of theories about determinants of legal contents. By explaining these challenges and pointing out how they may be met, the paper aims to show that some the age old debates about the nature or law are very much alive and worthy of serious philosophical inquiry.

What's Left of General Jurisprudence? On Law's Ontology and Content

The aim of this paper is to show that general jurisprudence is in no need of reinvention. The sentiment shared by many contemporary legal philosophers that theories about the nature of law have reached a dead end is challenged here by showing that the debates about the ontology of law and about the determinants of legal contents leave many interesting questions open for serious debate. The paper argues that traditional legal positivism is best seen as a theory about the ontological grounding of legal facts, and that a reductive account of this grounding can be provided with a more sophisticated account of the artifact nature of law, aided by some ideas derived from fictionalism. The paper also acknowledges that such a reductive ontology of law faces serious challenges, particularly from the view point of theories about determinants of legal contents. By explaining these challenges and pointing out how they may be met, the paper aims to show that some the age old debates about the nature or law are very much alive and worthy of serious philosophical inquiry.

The possibility of naturalistic jurisprudence

Contemporary legal philosophy is predominantly anti-naturalistic. This is true of natural law theory, but also, more surprisingly, of legal positivism. Several prominent legal philosophers have in fact argued that the kind of questions that legal philosophers are interested in cannot be naturalized, such that a naturalistic legal philosophy is something of a contradiction in terms. Against the dominant view I argue that there are arguable naturalistic versions of both legal positivism and natural law. Much of the essay is dedicated to showing that such views are possible: I identify naturalistic versions of a “natural law” view, a “positivist” view, as well as a “semi positivist” view, all of which are variants of the familiar (anti-naturalistic) views defended under these labels. I also offer a tentative argument in support of a naturalistic positivist view, one that has more in common with the views of Thomas Hobbes and Jeremy Bentham than with the anti-naturalistic positivist views popular these days.

Francisco Suárez y la Filosofía del Derecho actual (Aspectos de su pensamiento jurídico ante el Cuarto Centenario de su muerte)

La conmemoración, en el año 2017 del cuarto Centenario de la muerte de Francisco Suárez, constituye un motivo cultural que invita a repensar la persistencia de su legado doctrinal jurídico en la Filosofía y la Teoría del Derecho de la actualidad. En este ensayo se analizan su concepción de la ley, a partir de sus elementos constitutivos y de sus implicaciones. Así como las relevantes observaciones de Suárez sobre las características del lenguaje lega. Este trabajo se propone ofrecer un balance de aquellos aspectos de la reflexión de Francisco Suárez sobre el Derecho que pueden implicar mayor interés para la cultura jurídica del presente. Se analiza, con especial atención, el carácter innovador de la concepción jurídica de Suárez con respecto a la tradición medieval y a las doctrinas de su tiempo. Se pueden advertir así rasgos anticipadores del pensamiento de Suárez con respecto a determinadas concepciones filosófico-jurídicas contemporáneas.

The relationship between the justice and the law in the passive offside of jurisprudence

In the article, the author analyzes the relationship between two concepts: the concept of a just action and the concept of the law. In doing so, he follows insight of contemporary legal philosophers, those on both sides of the 'front lines' in the jurisprudence (positivists as well as natural law theorists), according to which it is wrong to confine that relationship to the question of whether Lex injusta has legal validity or not. However, this does not mean that there are no essential or significant relationships between the two concepts. The task of jurisprudence is to deal with these questions and in that respect help us to better understand of 'our' own legal system and social practices. After analyzing the two concepts, it can be concluded, first, that the two key links between justice (just action), and the law is that the law is 'justice-apt', and second, that the law is the kind of thing that ought to be just. From these two necessary connections, it follows that the law which does not succeed to actualize so-called formal 'justice' and procedural justice, conceptually speaking, can not be recognized as a typical legal system, but can be regarded as the 'defective' or perverted law.