Metaphysics Of Law Research Articles

Analytic Tradition in Law: Through the Analysis of Language to the Reconstruction of Social Order

The article reconstructs the premises of the reception of analytic philosophy in jurisprudence and shows that the development of a method for clarifying the meanings of legal concepts is not least connected with the problem of legitimizing law enforcement. The article analyzes H.L.A. Hart’s approach to the problem of correlation between the “letter” and “spirit” of the law in the process of interpreting legal norms. The article argues that the process of interpretation is determined teleologically. In its limit, the interpretation of legal norms presupposes the re-creation of the desired image of society, the reconstruction of such social ontology that is most consistent with the ideal of achieving social welfare. The article examines the collision of the “ideal of order” and the “ideal of justice” as two regulations of law enforcement. The author believes that the interpretation of this collision within the analytical tradition was characterized by a gradual movement from the ideal of “mechanical” law enforcement, which minimizes the creative role of the interpreter, to the ideal of flexible interpretation focused on achieving legal goals in a changing environment. It is noted that, according to analytic approach, a theoretical solution to this conflict was proposed due to the development of the ideas of an “open texture” of law (H.L.A. Hart, F. Waismann). The author demonstrates that the development of the analytic tradition in jurisprudence has shown that the criticism of language and the interpretation of meanings are not technical tasks, but it presupposes the construction of a metaphysics of law. In this regard, the author concludes: the development of the ideas of the analytic tradition in jurisprudence demonstrates that the thesis about the absence of a positive program in analytic philosophy, put forward in the first (A.L. Nikiforov’s) article of the discussion, can be challenged.

Принципи правового регулювання митних режимів в Україні

У науковій публікації досліджуються принципи правового регулювання митних режимів в Україні як міжгалузевого інституту митного права.
 Зазначається, що митний режим є комплексом взаємопов'язаних правових норм, що відповідно до заявленої мети переміщення товарів через митний кордон України визначають митну процедуру щодо цих товарів, їхній правовий статус, умови оподаткування і зумовлюють їх використання після митного оформлення.
 Формулюється висновок про те, що роль принципів права в регулюванні митних режимів є визначальною, враховуючи євроінтеграційні прагнення України та зумовлену ними необхідність дотримання принципів верховенства права, правової визначеності та належного урядування органами публічної адміністрації.
 До принципів правового регулювання митних режимів слід віднести загально-правові (верховенства права, законності, правової визначеності, рівності всіх перед законом, гласності тощо), а також спеціальні принципи, серед яких: принцип сприяння розвитку міжнародної торгівлі; принцип захисту національних інтересів та безпеки у сфері зовнішньоекономічної діяльності; принцип диспозитивності вибору митного режиму суб'єктом зовнішньоекономічної діяльності, принцип доступності адміністративних послуг, які надаються органами публічної адміністрації (реалізація принципу «єдиного вікна» в роботі органів та посадових осіб Державної митної служби України) тощо.
 Зазначається, що зважаючи на мету національної держави набути повноправного членства в Європейському Союзі, наближення національних митних правил та процедур до стандартів та принципів ЄС є ключовим завданням публічної адміністрації в Україні.
 Формулюється висновок про те, що дослідження принципів правового регулювання митних режимів в Україні є основою для подальшого вдосконалення чинного національного законодавства та юридичної практики, розроблення перспективного законодавства у сфері правового регулювання митних режимів.

조선 미술에 내재한 음양합덕과 태극: 대순사상을 중심으로

This study analyzes the principles of the ‘Earthly Paradise’ (仙境, the realm of immortals), ‘Virtuous Concordance of Yin and Yang’ (陰陽合德), and the ‘Reordering Works of Heaven and Earth’ (天地公事) while combining them with Joseon art. Therefore, this study aims to discover the context wherein the concept of Taiji in ‘Daesoon Truth,’ deeply penetrates into Joseon art. Doing so reveals how ‘Daesoon Thought’ is embedded in the lives and customs of the Korean people. In addition, this study follows a review of the sentiments and intellectual traditions of the Korean people based on ‘Daesoon Thought’ and creative works. Moreover, ‘Daesoon Thought’ brings all of this to the forefront in academics and art at the cosmological level. The purpose of this research is to vividly reveal the core of ‘Daesoon Thought’ as a visual image. Through this, the combination of ‘Daesoon Thought’ and Joseon art will secure both data and reality at the same time. As part of this, this study deals with the world of ‘Daesoon Thought’ as a cosmological Taiji principle. This concept is revealed in Joseon art, which is analyzed and examined from the viewpoint of art philosophy. First, as a way to make use of ‘Daesoon Thought,’ ‘Daesoon Truth’ was developed and directly applied to Joseon art. In this way, reflections on Korean life within ‘Daesoon Thought’ can be revealed. In this regard, the selection of Joseon art used in this study highlights creative works that have been deeply ingrained into people’s lives. For example, as ‘Daesoon Thought’ appears to focus on the genre painting, folk painting, and landscape painting of the Joseon Dynasty, attention is given to verifying these cases. This study analyzes ‘Daesoon Thought,’ which borrows from Joseon art, from the perspective of art philosophy. Accordingly, attempts are made to find examples of the ‘Virtuous Concordance of Yin and Yang’ and Tai-Ji in Joseon art which became a basis by which ‘Daesoon Thought’ was communicated to people. In addition, appreciating ‘Daesoon Thought’ in Joseon art is an opportunity to vividly examine not only the Joseon art style but also the life, consciousness, and mental world of the Korean people. As part of this, Chapter 2 made several findings related to the formation of ‘Daesoon Thought.’ In Chapter 3, the structures of the ideas of ‘Earthly Paradise’ and ‘Virtuous Concordance of Yin and Yang’ were likewise found to have support. And ‘The Reordering Works of Heaven and Earth’ and Tai-Ji were found in depictions of metaphysical laws. To this end, the laws of ‘The Reordering Works of Heaven and Earth’ and the structure of Tai-Ji were combined. In chapter 4, we analyzed the ‘Daesoon Thought’ in the life and work of the Korean people at the level of the convergence of ‘Daeesoon Thought’ and Joseon art. The analysis of works provides a glimpse into the precise identity of ‘Daesoon Thought’ as observable in Joseon art, as doing so is useful for generating empirical data. For example, works such as Tai-Jido, Ssanggeum Daemu, Jusachaebujeokdo, Hwajogi Myeonghwabundo, and Gyeongdodo are objects that inspired descriptions of ‘Earthly Paradise’, ‘Virtuous Concordance of Yin and Yang,’ and ‘The Reordering Works of Heaven and Earth.’ As a result, Tai-Ji which appears in ‘Daesoon Thought’, proved the status of people in Joseon art. Given all of these statements, the Tai-Ji idea pursued by Daesoon Thought is a providence that follows change as all things are mutually created. In other words, it was derived that Tai-Ji ideology sits profoundly in the lives of the Korean people and responds mutually to the providence that converges with ‘Mutual Beneficence.’

The Myth of Generic Grounding

Motivated by avoiding a difficulty confronting the usual formulations of identity criteria, Fine (Philos Stud 173:1–19, 2016) has proposed and developed a generic account of grounding. In this paper, I examine two versions of the account (one in terms of arbitrary objects, and the other in terms of metaphysical laws). I argue that both proposals fail, as it is difficult to see how the strategy of ‘going generic’ can really solve the problem. I conclude that the idea of generic grounding is mysterious and unmotivated.

Legal Positivism Social Source Thesis and Metaphysical Grounding: Employing Metaphysical Grounding based on Metaphysical Laws

The core of legal positivism is the so-called social source thesis, which claims that legal facts are determined only by social facts. I examine an interpretation of this thesis that uses metaphysical grounding as an exact relation between legal facts and social facts. I argue that the current interpretation of the social source thesis in terms of metaphysical grounding has significant drawbacks that stem from it being based on the view that metaphysical grounding is a primitive relation. For that reason, the current interpretation is unintelligible and poses problems with explaining the normativity of legal facts. I present two other views on metaphysical grounding: that it holds due to essences of facts and that it holds due to metaphysical laws. I apply the notion that metaphysical grounding holds due to metaphysical laws and argue that in the case of grounding of legal facts in social facts, this metaphysical law is constituted by instrumental rationality. It provides intelligibility to this grounding relation, is able to explain the normative character of legal facts, and is compatible with the general form of explanation.

Propriété et possession dans le chapitre 89, « Fast-Fish and Loose-Fish » de Moby-Dick

In the cetological chapter 89 of Moby-Dick, Ishmael launches into a jocular disquisition about maritime laws aimed at settling litigations between ships claiming possession of the same whale. Dubbed “Fast-Fish and Loose-Fish”, the law under scrutiny is ostensibly extolled as the peaceful means to solve all whaling disputes. Yet, what emerges from the cases cited is that the law invariably grants the entire ownership of a contested prey to the party who last got hold of it. The judicial construct of property, Ishmael cannot but admit, amounts to legitimizing the right of the strongest: the idea that “possession is the whole of the law” ultimately extends to all human jurisprudence, justifying worldwide systems of exploitation. Such seems to be Ishmael’s orthodox indictment of the law as a mere instrument of power. However, the question of legal property ties in with the motif of self-ownership, crucial in the novel, notably via Ahab’s memorable claims to self-sovereignty but also via the more subdued issue of slavery. This article interrogates the implicit alignment of the law of property with the ontological issue of self-ownership, which wryly tends to exculpate human legal construct on the ground that it would merely emanate from a metaphysical law of generalized predation and appropriation—which also applies to literature, and most notoriously to Melville’s Moby-Dick, as a summa of plagiarized archives.

Debunking arguments and metaphysical laws

I argue that one’s views about which “metaphysical laws” obtain—including laws about what is identical with what, about what is reducible to what, and about what grounds what—can be used to deflect or neutralize the threat posed by a debunking explanation. I use a well-known debunking argument in the metaphysics of material objects as a case study. Then, after defending the proposed strategy from the charge of question-begging, I close by showing how the proposed strategy can be used by certain moral realists to resist the evolutionary debunking arguments.

Essence and modal knowledge

During the last quarter of a century, a number of philosophers have become attracted to the idea that necessity can be analyzed in terms of a hyperintensional notion of essence. One challenge for proponents of this view is to give a plausible explanation of our modal knowledge. The goal of this paper is to develop a strategy for meeting this challenge. My approach rests on an account of modality that I developed in previous work, and which analyzes modal properties in terms of the notion of a metaphysical law (which is a generalization of the concept of an essential truth). I discuss what information about the metaphysical laws (including essential truths) is required for modal knowledge. Moreover, I describe two ways in which we might be able to acquire this information. The first way employs inference to the best explanation. The metaphysical laws, including the essential truths, play a crucial role in causal and grounding explanations and we can gain knowledge of these laws by abductive inferences from facts of which we have perceptual or a priori knowledge. The second way of gaining information about the metaphysical laws rests on knowledge that is partly constitutive of competence with the concepts that are needed to express the relevant information. Finally, I consider how knowledge of the metaphysical laws can be used to establish modal claims, paying special attention to the much-discussed connection between conceiving and possibility.

THE SEMANTICS OF THE REWRITING SCENES IN V. SHAROV'S NOVELS "TRACT IN TRACE" AND "THE RAISING OF LAZARUS"

The research presents typology and semantics of the rewriting plots in V. Sharov's novels «Tract in trace» (1991) and «The Raising of Lazarus» (2002) in two aspects: receptive and historical, or historiosophical. In V. Sharov’s prose, the relation of characters to the text and the word together with the rewriting scenes show the specificity of the national mentality, according to which texts testify the metaphysical laws of historical reality, and the belief that the power of the word can transform reality. The teleological understanding of history was based on the understanding of the text as an instrument of influence on the material world, as a force of history. The article presents three types of rewriting plot in V. Sharov's novels «Tract in trace» and «The Raising of Lazarus». Firstly, correct (calligraphic) rewriting as an attainment to the metaphysical meaning of sacral texts (mythologization and demythologization). The semantics of this plot in V. Sharov’s novels emphasizes the impossibility of reproducing or preserving sacred meanings and transforming imperfect historical reality. Secondly, rewriting can be correction of other people's ideas and one’s own attempt to change life with the help of the text. It determines the conditionality of understanding the text, rewriting, reworking the tasks of the present. In particular, «The Raising of Lazarus» explains Russian people’s sufferings in the XX century. The second type can denote the illusory character of such attempts to change the reality by texts, as it is reality that corrects texts. Thirdly, rewriting, or interpreting texts can denote a deeper understanding of reality (hermeneutic meaning): it signifies a dialogue between the pretext meaning and the meaning perceived by the «rewriter».

Laws for Metaphysical Explanation

AbstractI argue that, just like causal explanation requires laws of nature, so metaphysical explanation requires laws of metaphysics. I offer a minimal rendition of the argument for laws of metaphysics, assuming nothing about grounding or essences, and little about explanation. And I offer a positive and minimal functional conception of the laws of metaphysics, coupled with an argument that some laws of metaphysics are fundamental.

Metaphysics of laws and ontology of time

At first glance, every metaphysics of laws (Humeanism, primitivism, Power metaphysics) can be combined with every ontology of time (eternalism, growing block, presentism). In contrast, the paper intends to show that Humeanism requires eternalism and that Power metaphysics must presuppose an existentially dynamical view of temporal existence, i.e. growing block or presentism. The presented arguments turn out to be completely independent of whether the laws of nature are deterministic or probabilistic: the world is non-productive and static or productively dynamical, the future be ‘open’ or not.

Категорія правового буття у вченні Платона.

The article discovers the main characteristics of legal ontology, which Plato highlights in his writings, reveals the main essential powers that define the law. The author determined that justice is a concept that is identified with the law, it ingicates civilized human dignity, non-compliance with it makes suffering. The law may be different, and it is important his connection with legal existence, the law is just a form, a cup that needs to be filled with content.It is proved that logos, freedom and constructive coexistence are three key pillars on which the legal existence of Plato is based. Superhuman and supra-state metaphysical law gives grounds for justice and norms.For Plato, the idea is not exposed to time, it is always equally true. Thus, the legal existence is called to keep the legal criterion as clearly as possible so as not to lose its content in the field of political and legal changes.From the doctrine of Plato we can highlight the forces that affect the existence of space. First, it’s a destiny. This means that all time measurements in outer space are open. Destiny moves the cosmos to a certain future, that’s why nothing is taken from nowhere, and nowhere does it happen, everything is organized even in the time dimension. Thus, the task of law is not prediction of the future, but giving of all possible variants of behavior and their placement in legal reality. The second force is a strong desire. It is also an inalienable ontological attribute of law, since one way or another, it is expressed in certain ordinances, with certain will – to do something or refrain from certain actions. Consequently, the legal existence is always some kind of will, which must be performed, otherwise it is an isolated phenomenon and processes.The imagery of myth for Plato is an analogy that the human conscience needs in order to perceive the hegemony of reason in its relationship.

Laws for Metaphysical Explanation

I argue that, just like causal explanation requires laws of nature, so metaphysical explanation requires laws of metaphysics. I offer a minimal rendition of the argument for laws of metaphysics, assuming nothing about grounding or essences, and little about explanation. And I offer a positive and minimal functional conception of the laws of metaphysics, coupled with an argument that some laws of metaphysics are fundamental.

An avant-garde reading of the Russian bylina ('The three campaigns of Ilya Muromets' and The Burlesque of Lord Perun, the God of Thunder)

The subject of our paper is the analysis of an intertextual dialogue between the avant-garde novel The Burlesque of Lord Perun, the God of Thunder and the Russian bylina 'The Three Campaigns of Ilya Muromets'. The objective of our paper is firstly to show the way in which the figure of the Russian bogatyr is positioned in the collage of Petrović's text as a cultural, genre and literary form, and secondly, to show which strategies are used to deconstruct that same form in order to gain new meanings in a new, avant-garde context. In Petrović's vision, Slavic folklore is a poetic counterpart of all established principles and therefore suitable for understanding complex historical, artistic and cultural turbulences, which is why we can conclude that the resemantized template of the Russian folklore text also becomes a place of subversion of epic identity, genre conventions, European metaphysical laws and antiquated canons of all kinds. In the new context, the Russian heroic epic poem is indicated as a stimulus for upgrading the conception of active nihilism, which implies abolishment of absolute values and truths as well as authoritarian instances of totality in the novel.

Natural Properties, Necessary Connections, and the Problem of Induction

The necessitarian solution to the problem of induction involves two claims: first, that necessary connections are justified by an inference to the best explanation; second, that the best theory of necessary connections entails the timeless uniformity of nature. In this paper, I defend the second claim. My arguments are based on considerations from the metaphysics of laws, properties, and fundamentality.

A dilemma for Heideggerian cognitive science

‘Naturalizing phenomenology’ by limiting it to the ontology of the sciences is problematic on both metaphysical and phenomenological grounds. While most assessments of the prospects for a ‘naturalized phenomenology’ have focused on approaches based in Husserlian transcendental phenomenology, problems also arise for non-reductive approaches based in Heideggerian existential phenomenology. ‘Heideggerian cognitive science’ faces a dilemma. On the one hand, (i) if it is directly concerned with the nature of subjectivity, and this subjectivity is assumed to be ontologically irreducible to its physical enablers yet still metaphysically dependent on them, then Heideggerian cognitive science will either leave that metaphysical dependence an unexplained instance of supervenience, or ground it in speculation about brute metaphysical laws that have an unclear relationship to the ontology of the sciences. On the other hand, (ii) if Heideggerian cognitive science is not directly concerned with the nature of subjectivity, but is instead merely aimed at the development of a Heideggerian phenomenological psychology, then it doesn’t fully address the ontological implications of phenomenology’s transcendental approach, and so, while it might succeed in explaining the realization of psychological phenomena scientifically, the existence of subjectivity will remain inexplicable based on the ontology of the sciences. Neither strategy succeeds in ‘naturalizing phenomenology’: (i) either rejects scientific naturalism, or makes its requirements trivial, while (ii) either rejects the transcendental dimension of phenomenology, or fails to address its ontological implications.

Vagueness and the Laws of Metaphysics

This is a paper about the nature of metaphysical laws and their relation to the phenomenon of vagueness. Metaphysical laws are introduced as analogous to natural laws, and metaphysical indeterminism is modeled on causal indeterminacy. This kind of indeterminacy is then put to work in developing a novel theory of vagueness and a solution to the sorites paradox.

The Deductive-Nomological Account of Metaphysical Explanation

The paper explores a deductive-nomological account of metaphysical explanation: some truths metaphysically explain, or ground, another truth just in case the laws of metaphysics determine the latter truth on the basis of the former. I develop and motivate a specific conception of metaphysical laws, on which they are general rules that regulate the existence and features of derivative entities. I propose an analysis of the notion of ‘determination via the laws’, based on a restricted form of logical entailment. I argue that the DN-account of ground can be defended against the well-known objections to the DN-approach to scientific explanation. The goal of the paper is to show that the DN-account of metaphysical explanation is a well-motivated and defensible theory.

Sobre o significado do formalismo jurídico de Kant

O presente trabalho tem por objetivo fornecer uma resposta à crítica direcionada pelo jurista Fábio Konder Comparato ao formalismo jurídico de Kant. Explicarei porque essa crítica se equivoca quando identifica, na Doutrina do Direito de Kant, uma Teoria do Direito incompleta e insatisfatória. Para tanto, pretendo mostrar que o propósito do filósofo alemão não era apresentar uma teoria do direito, mas sim uma Metafísica do Direito. O que explica, por conseguinte, a razão para o direito ter sido concebido como um conceito puro. Além disso, a fim de determinar o significado do formalismo jurídico, ocupar-me-ei da crítica hegeliana ao suposto formalismo ético de Kant, bem como da resposta a essa crítica.

The Metaphysics of Law: From Supervenience to Rational Justification

The paper challenges the view that the metaphysical grounding of the law - in contrast to other domains - requires a special legal grounding relation, which involves the condition of rational determination. It is argued that rational determination ought to be extended to all metaphysical grounding, for otherwise general metaphysical grounding would easily deteriorate to supervenience, which has already been rejected as a plausible basis of the grounding relation by many a contemporary metaphysician. What is special about the metaphysics of law is not the general framework of grounding through rational determination, but the engagement in a rational reconstruction of legal facts in terms of their capacity to generate normative reasons for action.