Positive Theory Research Articles

The Symmetry of Hypocrisy in Czech-German Legal Conciliation, 1989–1997

AbstractFollowing the collapse of communism in 1989, the Czechoslovak and German governments entered a new phase of relations marked by reconciliatory goodwill. However, relations rapidly deteriorated in the face of mutual claims for material redress concerning the wartime Nazi occupation of Czechoslovakia and the expulsion/transfer of the Sudeten German population in the immediate postwar period. The Czechoslovak (later Czech) and German governments disputed the legal status of the Munich Agreement of 1938 and the Beneš Decrees of 1945, and their differing interpretations had implications either strengthening or undermining the Sudeten German restitution claim. Comparing argumentative strategies reveals a striking symmetry of hypocrisy. Czech and German representatives selectively employed two opposing theories of legal legitimacy, reflecting the jurisprudential schools of legal positivism and natural law theory, either to defend or repudiate the abovementioned instruments. This article argues that reciprocal inconsistency critically undermined attempts by Czech and German representatives to achieve a legal resolution in the 1990s.

Psychological growth experience of women with abnormal fetal induced labor based on positive psychology theory

Objective To explore the emotional experience of abnormal fetal pregnant women after induced labor. Methods Phenomenological methods were used to conduct in-depth interviews with 20 pregnant women with abnormal fetal induced labor from November 2018 to January 2019. Colaizzi analysis method was used to sort, code, classify, summarize and extract the subjects. Results Two themes were extracted: Post-traumatic growth experiences and promotive factors of PTG. Post-traumatic growth experiences included traumatic reaction, new life attitude, exploring potential advantages, cherishing the relationship between relatives and friends, and actively seeking knowledge;Promotive factors of PTG included providing social support, mobilizing internal positive cognition, diverting attention, and planning for the future. Conclusions Medical staff should provide opportunities for pregnant women with abnormal fetal induced labor to express their emotions, fully integrate social and emotional support, mobilize internal positive cognition, and then promote their post-traumatic growth. Key words: Fetal abnormality; Positive psychology; Post-traumatic growth; Qualitative research

The Modern-day Cicero: An Alternative Interpretation of the Work of Ronald Dworkin

Ronald Dworkin is the most famous and most-cited legal philosopher. His work, notably his attack on H.L.A. Hart’s positivist theory of law, has received considerable attention, earning him praise as well as trenchant criticism. Instead of discussing the analytical validity of Dworkin’s claims, though, we propose an alternative reading of his jurisprudential writings that emphasises their rhetorical nature. After delineating the rhetorical context of his work, we provide several illustrations of his use of rhetorical strategies and, with the help of sentiment analysis techniques, emotional language. While resorting to classical rhetorical tactics, Dworkin’s rhetoric, we argue, appealed to the emotional power of rights talk at a time when the notion of right enjoyed greater resonance with his audience.

Concept and Position of Peremptory Norms (Jus Cogens) in International Law: A Preliminary Study

Peremptory norms or jus cogens hold a unique position in international law. Unlike customary international law and treaty law, they abide no derivation and bind all states regardless of their willingness to be bound. Some scholars had elaborated fundamental theories to answer the theoretical background of jus cogens. However, they have never reached a satisfactory result. This study aims to elaborate the theoretical background of jus cogens and to observe the relationship between jus cogens, obligation erga omnes, and customary international law. The positivists recognize that jus cogens is an imperative norm within state practice and opinio juris. The positivist theory is not in line with the concept that jus cogens bound to states without their consent since every state has their sovereignty and cannot be bound by any kind of provision without consent. The proponents of the natural law theory stated that peremptory norms are inherited from the tradition of natural law so that it is the highest norm in international law that directly binds countries. On the other hand, the public order theory states that international law recognizes important (imperative) norms, which are hierarchically higher than ordinary norms and customary international law to advance the interests of the international community and to preserve the main values of international law. The three theories are considered insufficient to answer the philosophical basis of jus cogens. In its development, therefore, some new theories have been developed to challenge the basis of jus cogens.

The Scope of Legal Positivism: Validity or Interpretation?

The theory of legal positivism has been much discussed over the years, and able writers have defended competing versions of it. These writers disagree not just about details, but about the interpretation of the main tenets of legal positivism: the social thesis, the separation thesis, and the thesis of social efficacy. As a result, there is some uncertainty about the scope of legal positivism. There is, in particular, the question of whether the social thesis applies not only to the level of sources of law, but also to the level of interpretation and application of the law. In this chapter, I am going to argue (A) that legal positivists have reason to conceive of the social thesis as a thesis about sources of law only, (i) because if they do, inclusive legal positivists will not have to assume that legal statements can be true or false in a non-relative way, and exclusive legal positivists will not have to hold that judges create new law as soon as they invoke moral considerations in their reasoning, and (ii) because doing so will undermine Ronald Dworkin’s well-known theoretical disagreement objection. I am also going to argue (B) that legal positivism, conceived along the lines of (A), will still be a significant theory.

Microfinance Institutions through the Lens of Social Entrepreneurship: Sri Lankan Experience

The objectives of the study are to explore the perception of Microfinance Institutes (MFIs) on Social Entrepreneurship (SE) and to examine the application of Positive Theory of Social Entrepreneurship (PTSE) in the MFIs in Sri Lanka and to identify unique social entrepreneurial characteristics in MFIs in Sri Lanka. This is a qualitative study carried out through primary data collected mainly from in-depth semi-structured interviews with 5 Chief Executive Officers (CEOs) representing 5 microfinance institutes in Sri Lanka who owned the largest microfinance loan portfolios. For the data analysis purpose thematic analysis method was used in the study. MFIs perceived the concept of social entrepreneurship as a social obligation parallel with profit making or as the obligation of the organization towards the society while achieving their commercial objectives. Application of the PTSE in the selected MFIs in Sri Lanka showed that four propositions on SE proposed in the theory can be observed to a considerable extent in the MFIs in Sri Lanka. Unique social entrepreneurial characteristics identified in the MFIs in Sri Lanka were adherence to the deep rooted values of MFIs, much flexible approach when dealing with microfinance clients, impact from other stakeholders on MFI to perform social entrepreneurial role, and the co-operative model of MFIs tended to promote SE. KeywordsSocial Entrepreneurship, Positive Theory of Social Entrepreneurship, Microfinance Institutes

Securities Lending Strategies, Valuation of Term Loans using Option Theory

We develop models to price long term loans in the securities lending business. These longer horizon deals can be viewed as contracts with optionality embedded in them and can be priced using established methods from derivatives theory, becoming to our limited knowledge, the first application that can lead to greater synergies between the operations of derivative and delta-one trading desks, perhaps even being able to combine certain aspects of the day to day operations of these seemingly disparate entities. We run numerical simulations to demonstrate the practical applicability of these models. These models are part of one of the least explored yet profit laden areas of modern investment management. We develop a heuristic that can mitigate the loss of information that sets in when parameters are estimated first and then the valuation is performed by directly calculating the valuation using the historical time series. This can lead to reduced models errors and greater financial stability. We illustrate how the methodologies developed here could be useful for inventory management. All these techniques could have applications for dealing with other financial instruments, non-financial commodities and many forms of uncertainty. An unintended consequence of our efforts, has become a review of the vast literature on options pricing, which can be useful for anyone that attempts to apply the corresponding techniques to the problems mentioned here. Admittedly, our initial ambitions to produce a normative theory on long term loan valuations are undone by the present state of affairs in social science modeling. Though we consider many elements of a securities lending system at face value, this cannot be termed a positive theory. For now, if it ends up producing a useful theory, our work is done.

Examining Honneth’s Positive Theory of Recognition

ABSTRACTIn this article I examine Axel Honneth’s positive theory of recognition. While commentators agree that Honneth’s theory qualifies as a positive theory of recognition, I believe that the deeper reason for why this is an apt characterisation is not yet fully understood. I argue that, instead of considering only what it is to recognise another person and what it means for a person to be recognised, we need to focus our attention on how Honneth pictures the practice of recognition as a whole, which according to him works to make societies into places of greater freedom. This conception of recognition as a freedom-enhancing practice is supposed to provide a solution to a key problem of Frankfurt School critical theory, namely of how to determine the emancipatory practice in which critical theory is rooted, which becomes apparent as soon as one turns to the context in which Honneth originally develops his theory of recognition. At the end of the article, I offer a few reasons for doubting the overly positive picture of the practice of recognition that Honneth provides us with.

The Allocation of Excepted Political Positions: What and Whose Executive Priorities Do They Serve?

Scholars have only begun to examine the roles played by non-career SES and Schedule C personnel in managing the bureaucracy. This, despite the fact that these individuals help to establish, communicate, and implement policy, and despite the broad discretion presidential administrations have in appointing them, defining their duties, and allocating their positions across the federal government. As an effort to redress this neglect, we first provide an overview of what lower-level political personnel do and of the processes and constraints that determine how they are distributed. We then examine how changes in presidential administration have affected the allocation of political SES and Schedule C positions across departments. Although dramatic infusions of these personnel into some agencies can be tied to policy objectives, they appear to be idiosyncratic and driven more by the preferences of agency leaders than by the White House. As such, they provide little support for positive theories that frame the administrative presidency in terms of centralized strategic planning.

Amartya Sen’s nonideal theory

ABSTRACTAmartya Sen argues that Rawls’s theory is not only unnecessary in the pursuit of justice, but it may even be an impediment to justice in so far as it has discouraged more useful work. Against what he considers the dominance of transcendental theory, Sen calls for a more realistic and practical ‘comparative’ theory of justice. Sen’s negative point has been widely discussed, but here I develop a reconstruction of Sen’s positive theory (a combination of Adam Smith’s Impartial Spectator, Social Choice Theory, and the Capabilities Approach) in order to evaluate it on its own terms. I find that the theory is technocratic, despite Sen’s insistence to the contrary.

Narrative criminal justice

Criminal justice is replete with positivistic theories of decision making. However, such theories fail to acknowledge the interpretive nature of criminal justice agents and their decisions. This paper outlines a narrative approach to criminal justice decision making hinged on the philosophical works of Paul Ricoeur. The paper argues that criminal justice professionals are “story-telling animals” whose decisions and actions are teleologically determined through narratives or stories, which are primary meaning-making tools. Decision making is placed under the quasi-causal model of action where action is described, narrated, and prescribed. To arrive at a decision, however, there is a need for a dialectical interweaving operation between narrative interpretation and argumentation with which one arrives at a decision. A research agenda to move “narrative criminal justice” forward is suggested.

Resonant Mirković–Vilonen polytopes and formulas for highest-weight characters

Formulas for the product of an irreducible character $$\chi _\lambda $$ of a complex Lie group and a deformation of the Weyl denominator as a sum over the crystal $${\mathcal {B}}(\lambda +\rho )$$ go back to Tokuyama. We study the geometry underlying such formulas using the expansion of spherical Whittaker functions of p-adic groups as a sum over the canonical basis $${\mathcal {B}}(-\infty )$$ , which we show may be understood as arising from tropicalization of certain toric charts that appear in the theory of total positivity and cluster algebras. We use this to express the terms of the expansion in terms of the corresponding Mirkovic–Vilonen polytope. In this non-archimedean setting, we identify resonance as the appropriate analogue of total positivity, and introduce resonant Mirkovic–Vilonen polytopes as the corresponding geometric context. Focusing on the exceptional group $$G_2$$ , we show that these polytopes carry new crystal graph structures which we use to compute a new Tokuyama-type formula as a sum over $${\mathcal {B}}(\lambda +\rho )$$ plus a geometric error term coming from finitely many crystals of resonant polytopes.

Debt and Economic Growth of Pakistan; Role of Uncertain Economic and Political Conditions

This study is an attempt to investigate the role of political instability and economic uncertainty on debt and economic growth for the data span of 1975 to 2016 in Pakistan. We extract economic uncertainty by using Generalized Autoregressive Conditionally Heteroskedastic (GARCH) model. We explore the relationship between debt and economic growth simultaneously with Generalized Method of Moments (GMM) approach. The deep-rooted relation of political and economic uncertainty with debt and growth recommends immediate fiscal and public policy adjustments to minimize the harms of higher debt-GDP ratio and slow economic growth. This study results in the changing fiscal behavior with political shifts and confirms “the positive theory of debt†, by Alesinaand Tabellini (1989 and 1990), recommending stable political environment with consistent economic policies for Pakistan.

The Future of U.S. Carbon-Pricing Policy: Normative Assessment and Positive Prognosis

There is widespread agreement among economists – and a diverse set of other policy analysts – that at least in the long run, an economy-wide carbon pricing system will be an essential element of any national policy that can achieve meaningful reductions of CO2 emissions cost-effectively in the United States. There is less agreement, however, among economists and others in the policy community regarding the choice of specific carbon-pricing policy instrument, with some supporting carbon taxes and others favoring cap and trade mechanisms. This prompts two important questions. Which – if either – of the two major approaches to carbon pricing is superior in terms of relevant criteria, including but not limited to efficiency, cost-effectiveness, and distributional equity? And which of the two approaches is more likely to be adopted in the future in the United States? This paper addresses these questions by drawing on both normative and positive theories of policy instrument choice as they apply to U.S. climate change policy, and draws extensively on relevant empirical evidence. The paper concludes with a look at the path ahead, including an assessment of how the two carbon-pricing instruments can be made more politically acceptable.

On the choice of legal standards: a positive theory for comparative analysis

In contrast to existing economic theory on the choice of legal standards in the enforcement of Competition Law, we develop a modelling framework that accounts explicitly for (a) Courts' choices, given the substantive standard adopted and (b) Competition Authorities (CAs) setting legal standards anticipating Courts' choices, recognizing that CAs place at least some weight on the implications of their choices for the outcome of the judicial review process and, hence, for their reputation. We then show why CAs may favor Per Se type standards (even when an error-minimising or welfare maximization approach would suggest the choice of an effects-based standard), with sub-optimal utilization of economic analysis, how this choice is affected by the Courts' substantive standards, why the legal standards for any given conduct may differ between countries, why there may be a U-shaped empirical relationship between legal standards and the probability that the CA's decisions are annuled and how the choice of standards affects other aspects of enforcement, such as the number of investigations undertaken. [ABSTRACT FROM AUTHOR]

Thinking Institutionally About Judicial Review: Originalism, Judicial Supremacy, and the Concept of Law

In this essay, I intend to advance two primary ideas. In the first part, I argue that originalism, as a judicial philosophy incubated as a conservative reaction against the legislative excesses of the Warren Court, is intrinsically wedded to two core theses: (a) the (in principle) determinacy of legal rules and (b) judicial supremacy. By the ‘determinacy of legal rules,’ I mean the idea that, in all but borderline cases, a uniquely correct outcome can be determined, based on objective criteria, given the case’s facts and the legal principles most appropriately tied to those facts. This is the jurisprudential theory of legal positivism, which originalists [almost?] categorically accept. By judicial supremacy, I mean acceptance of the principle that the final interpretive authority of the Constitution is and should be the judiciary, as opposed to some other institutional actor. While generalizing about ‘originalism’ is dangerous, given the perhaps dozens of distinct varieties pursued by American legal scholars and jurists over the past half-century, I believe that these two ideas are intrinsic to most, if not all, strands of originalism widely utilized in the legal academy. Casting doubt on these theses would thus be a substantial contribution to contemporary debates over how the constitution should be interpreted. Primarily for their importance and familiarity to academic audiences, I focus on what I call two ‘old’ originalist jurists, Robert Bork and Antonin Scalia, and arguably the most central figure of ‘new’ originalist thought, Randy Barnett, to show how these two theses play into their versions of originalism. In the second part of this essay, I argue that the first of these ideas, the determinacy of law, is unappealing because legal rules themselves are often not sufficiently outcome determinative to fulfill the role that originalists tend to presume that constitutional rules, properly understood, should. My argument utilizes the interpretivist jurisprudence of Ronald Dworkin. If I am right, the question of who has interpretive authority is just as crucial as the question of how the Constitution should be interpreted. With regard to the second thesis, I argue that judicial supremacy is an inappropriate structural feature in our separation of powers system. Relying on the constitutional theory of German jurist Carl Schmitt, I argue, first, that the Supreme Court has generally proven incapable of serving, at least in times of crisis in which it is arguably most needed, as an efficacious guardian of constitutional norms, and, second, that its attempts to do so have proven disastrous for the legitimacy of the federal judiciary over the past few decades. I conclude with some normative arguments, based on the work of Jeremy Waldron, as to why the judiciary is an inappropriate institutional actor for the application of originalist methodology.

Rationality and Capitalist Schooling

In the field of philosophy of mind, the concepts of rational behavior, rational choice theory, and instrumental rationality (the “practical reasoning” version of rationality) are important in trying to make statements and conclusions about human thinking and behavior in general. Rational choice theory is also considered a normative but not a descriptive or positive theory. Much of economic theory is based on the principle that economic agents usually or always behave rationally in maximizing the benefits and/or minimizing the costs of their decisions. Developments in behavioral economics over the last several decades have begun to question this principle with much of the questioning about rationality and rational behavior centering on whether individuals can correctly and adequately assess probabilities and risk/reward. The inability to correctly assess risk/reward limits rational behavior and can yield sub-optimal outcomes for economic agents. This exploratory paper examines the linkages between schooling in a capitalist society and limits on rationality in a monopoly capital economic system.

Pengaruh Leverage, Bonus Plan, Ukuran Perusahaan, dan Profitabilitas pada Praktik Perataan Laba

The study was conducted on consumer goods industry companies for the period 2013-2017. The number of research samples is 165 observations chosen by non probability sampling method, namely purposive sampling. The data analysis technique uses logistic regression analysis. Based on the analysis, results can be obtained namely leverage does not affect the income smoothing practice; bonus plan has positive effect on income smoothing practices; company size has negative effect on income smoothing practices; and 4) profitability has no effect on income smoothing practices. The implications of this research can be divided into two types, namely theoretical and practical implications. Theoretical implications that can be a reference source of research relating to income smoothing practices and can support positive keaganen theory and accounting theory, while the practical implication is a consideration for investors in making investment decisions.
 Keywords: leverage, bonus plan, company size, profitability, income smoothing practice

Why Legal Positivism (Again)?

This was a keynote address at the annual meeting of the Australasian Society of Legal Philosophy at the University of Sydney in 2013. (It is a much expanded version of some brief remarks presented in 2010.) Why is legal positivism the dominant view among legal philosophers? address begins with a somewhat lengthy methodological preamble, offering reasons to resist the extravagant metaphysical inflation of the purported theoretical virtues of positivism in some recent jurisprudential writing by Dickson and Shapiro, among others. Artifacts do not have essential attributes, not even functional ones. (Leslie Green's partial resistance to my metaphysical deflation in his recent The Morality in Law is shown to depend on some confusions about the status of the claim that law is an artifact.) I then suggest that legal positivism has three theoretical virtues counting in its favor. First, if we take seriously the benchmark for theoretical adequacy that Hart gave for his theory - namely, that it capture what the ordinary educated person familiar with a modern municipal legal system understands by the concept of law - that positivism does the best job of accounting for this ordinary understanding. (Particular attention is drawn to Raz's original arguments for legal positivism of this form, as opposed to his perhaps better-known, if more controversial, argument from the nature of authority.) Second, the positivist account of law is the one deployed fruitfully in all the empirical social sciences. Third, the positivist theory does not involve incredible or controversial metaphysical assumptions. last two theoretical considerations are acknowledged to presuppose naturalism, but I suggest that doing so is unavoidable. Are there any competitors to the positivist theory so understood? most sophisticated version of natural law theory, that of John Finnis, has conceded the main points in dispute to the legal positivists, and fails to articulate a successful argument against descriptive jurisprudence. A plausible theoretical reconstruction of the jurisprudence of American Legal Realism shows it to presuppose the positivist view. Scandinavian Legal Realism is shown to reject Hart's benchmark of theoretical adequacy (the first point, above), and so to be undertaking a wholly different project, one in no competition with Hart's. Dworkin's theory, by contrast, fails along the the three dimensions of theoretical adequacy along which legal positivism succeeds. paper concludes that the appeal of Dworkin's theory to constitutional lawyers in the Anglophone world and elsewhere is due entirely to the (correct) perception that his theory makes moral considerations relevant to the resolution of momentous constitutional questions; unfortunately, nothing in the positivist theories of Hart and Raz denies the relevance of moral considerations to such questions. I end with some sociological reflections on jurisprudence that may partly explain the continued resistance to legal positivism, contrasting my own sociological speculations with Dworkin's final and embarrassing ad hominem arguments against legal positivism.

Total Positivity and the Classification of Term Structure Shapes in the Two-Factor Vasicek Model

Using methods from the theory of total positivity, we provide a full classification of attainable term structure shapes in the two-factor Vasicek model. In particular, we show that the shapes normal, inverse, humped, dipped and hump-dip are always attainable. In certain parameter regimes up to four additional shapes can be produced. Our results show that the correlation and the difference in mean-reversion speeds of the two factor processes play a key role in determining the scope of attainable shapes. The mathematical tools from total positivity can likely be applied to higher-dimensional generalizations of the Vasicek model and to other interest rate models as well.