Rationality Of Law Research Articles

Czy argument historyczny może pomóc w trudnych przypadkach dzisiejszego prawa prywatnego?

The use of historical arguments in legal reasoning today is relatively rare and often superficial. The aim of the paper is to clarify whether the situation can be changed and whether this would be useful for the interpretation of codified private law. In the author's view, a change in this direction will be possible and justified when historical arguments are made available in a way that is clearly linked to issues of contemporary practice and is addressed to lawyers who believe in the existence of objective premises of rationality in law and are open to including historical arguments into topical reasoning in order to support a solution that he or she considers legitimate. The author believes that the best way for making historical arguments available for such a purpose is a historical commentary on the Civil Code. The article presents a conception for such a commentary.

Sisyphus in robes: International law, legal interpretation and the absurd

Abstract Legal systems across the world contain the obligation to prevent ‘absurd interpretations’ of law. In international law, an instruction to avoid ‘manifestly absurd’ interpretations can be found in Article 32 of the Vienna Convention on the Law of Treaties. This gives rise to at least two questions that I will take up in this article. First, what is meant by the ‘absurd’ that is to be avoided in legal interpretation. The short answer to this question is: no one knows exactly. The absurd, by its very nature, resists definition in pre-given categories, as I will argue on the basis of four core thinkers on the absurd: Søren Kierkegaard, Jean-Paul Sartre, Albert Camus, and Thomas Nagel. The second question is more technical and easier to answer: how should lawyers try to avoid absurd interpretations? Here, I turn to absurdist writing and the theatre of the absurd for assistance. Absurdist writing and theatre have developed a number of techniques to make the absurd appear, to let the audience experience that something is fundamentally out of tune. Lawyers use similar techniques, but in reverse and with an opposite purpose: they add exposition, narrative, reasonable language, and stable, rational legal personae. In this way, they boost the rationality and reasonableness of the legal order. However, to come full circle, it is exactly the pretension of rationality and reasonableness that makes the law vulnerable to manifestations of the absurd. The rationality of law is the springboard for the very same absurdity it tries to suppress.

From the rationalism abandonment to the return to rationality

The article represents a plea for the return to rationality in law by approaching the fundamental aspect, the material aspect of rationality in law, that rationality which allows the identification of criteria for evaluating the legitimacy of law and the relationship between Law and Act. In this context, a historical retrospective of the evolution of the concept of rationality in law is carried out, which demonstrates the need to continue this theoretical approach until it becomes a reality in the conditions in which we aim to overcome the gap between the theoretical and applied framework, and the getting out of the crisis of law. Also, the vital necessity to return to rationality in law is justified, including through practical but also scientific arguments. At the same time, the study represents an appeal, a call to return to rationality and responsibility in the knowledge and application of the law and to continue efforts in order to achieve this desideratum.

PENYAMAAN BATAS USIA PERKAWINAN PRIA DAN WANITA PERSPEKTIF MAQASID AL-`USRAH (ANALISIS PUTUSAN MAHKAMAH KONSTITUSI NOMOR 22/PUU-XV/2017)

Marital Age Arrangement as ruled by UU Perkawinan and KHI is part of open legal policy
 category and has legal validity according to regulation of Constitutional Court (Mahkamah
 Konsitusi). Nevertheless, legal policy must be positioned unexceeding authority, unbreaking
 morality and rationality of law, not to impact intolerable injustices, and not clearly
 contradicting Indonesian Constitution (UUD) 1945. Hence, relating to questioning phrases in
 article 7 verse 1 “in 16 years old” as part of Marital Law N. 1/1974. The Constitutional Court on
 its court decision explains that that provision is has not binding legal force. This decision has
 implicated obligation of equalizating minimum age of marriage (both male and female). Then,
 what is maqasid al-usrah thought on this decision? To answer that question, this research will
 explain criteria of adulthood from Islamic Law perspective and maqasid al-usrah thought on
 equalizating minimum age of marrige, both male or female. Islamic Law, throught its concept
 of baligh and `aqil, has opinion that measure of adulthood (both male and female) is same, where
 they have reached 15 years of age. Biologically, male is considered adult when he released
 sperm firstly. And female is considered adult when she menstruasting for the first time, or her
 sense of smell is more sensitive, or changing vocal sound, or growing some hair around her
 vagina and on armpits. Equalizating marital age between man and woman is justified based on
 maqasid al-usrah and Islamically legal as long as its purpose is implementing the marital goals

The Rationalities of Law between Formalism, Empiricism and Rematerialisation

[MWS 21.2 (2021) 245-258] ISSN 1470-8078 doi: 10.15543/maxweberstudies.21.2.245© Max Weber Studies 2021, Global Policy Institute, University House, Coventry University London, 109 Middlesex Street, London E1 7JF. The Rationalities of Law between Formalism, Empiricism and Rematerialisation Michel Coutu Review of Hubert Treiber, Reading Max Weber’s Sociology of Law, trans. by Matthew Philpotts. (Oxford University Press, 2020), 195 pp. (hbk) ISBN 9780198837329. £80. Recently, at least three books (to our knowledge) have appeared in English on Max Weber’s Sociology of Law,1 following the publication in 2011 of the definitive version of the work, combining two parts of the monumental treatise Economy and Society, as volume I/22-3 of the Max Weber Gesamtausgabe.2 The most recent work, published in 2020, is by Hubert Treiber, Professor Emeritus at the Faculty of Law of the Gottfried Wilhelm Leibniz University in Hanover. Informed by an encyclopaedic knowledge not only of Max Weber’s work but also of a large body of relevant legal, social and historical literature (especially in German), Hubert Treiber’s book offers clear and simple keys to understanding the Sociology of Law, structuring the presentation around the stages of development of law identified, as an ideal-typical stylisation, by the sociologist. Introductory Section In Reading Max Weber’s Sociology of Law, the author devotes an introductory section (pp. 1-38, including chapters 1 and 2) to the following issues: the dating of the Sociology of Law, some necessary terminological clarifications, and Weber’s aims. Volume I/22-3 of the MWG brings together the two texts of Economy and Society that deal in 1. In addition to Treiber, see Werner Gephart, Law, Culture and Society: Max Weber’s Comparative Cultural Sociology of Law (Frankfurt, Vittorio Klostermann, 2015); Michel Coutu, Max Weber’s Interpretive Sociology of Law (London, Routledge, 2018). 2. Max Weber, Wirtschaft und Gesellschaft: Recht, Max Weber-Gesamtausgabe, Bd I/22-3 (Tübingen, Mohr Siebeck, 2010). 246 Max Weber Studies© Max Weber Studies 2021. depth with the relationship between law and other spheres of activity: the section entitled ‘Die Wirtschaft und die Ordnungen’, which is largely devoted to the refutation of Rudolf Stammler’s theses3 on the relationship between economy and law, and the long chapter of Economy and Society (generally referred to as ‘Sociology of Law’) analysing the rationalisation of law.4 The precise dating of the various texts that make up the posthumous work Economy and Society is a challenge in itself and has given rise to much controversy. Based on the work of Wolfgang Schluchter,5 Werner Gephart and Siegfried Hermes, and on his own exceptional knowledge of Weber’s work, Treiber links the two major texts on law, given the terminology used, to the publication of the 1913 Logos article ‘On Some Categories of Comprehensive Sociology’.6 The completion of the text on the sociology of law (the second text) would therefore date from early to mid-1913. Concerning the terminology used by Weber, Treiber underlines the distinction between sociological and legal conceptions of law, implying respectively an empirical or normative search for ‘validity’. The author insists on the particular meaning of the notion of ‘order’ in Weber, i.e, a complex of representations and maxims of conduct orienting the behaviour of actors, whose stability is all the more assured when there is a strong belief in legitimacy. As for the sociological definition of law, which is distinguished from pure convention (the effectiveness 3. Max Weber, ‘Rudolf Stammler “Overcoming’ of the Materialist Conception of History’ and ‘Addendum to the Essay on Rudolf Stammler “Overcoming” of the Materialist Conception of History’, in Hans Henrik Bruun and Sam Whimster (eds.), Max Weber: Collected Methodological Writings (London, Routledge, 2012), pp. 185-240. Translation by H.H. Bruun of Max Weber, ‘R. Stammlers “Überwindung” der materialistischen Geschichtsauffassung’ and ‘Nachtrag zu dem Aufsatz über R. Stammlers “Überwindung” der materialistischen Geschichtsauffassung’, Gesammelte Aufsätze zur Wissenschaftslehre (Tübingen, J.C.B. Mohr [Paul Siebeck], 1988), pp. 291-383. For an overview of the social philosophy of R. Stammler, see Michel Coutu, ‘Stammler, Rudolf’, in: M. Sellers, S. Kirste (eds.) Encyclopedia of the Philosophy of Law and Social Philosophy (Springer, Dordrecht...

The history of the emergence of ideas about the principle of reasonableness in the mechanism of interpretation of law

The issue of the history of the origin of ideas about the principle of reasonableness in law occupies a central place within the study of historical and legal aspects of the principles of law in general. The author proves that the ideas about the principles of law in general are marked by the historical duration of their formation and development, and today the legal doctrine is represented by a wide range: a) worldview and scientific ideas of thinkers of antiquity; b) various theoretical and practical ideas of philosophers of the medieval period; c) scientific works of the Modern Age and the Enlightenment; d) innovative concepts and theories put forward by modern philosophers, modern jurists, political scientists, philosophers and scientists (both representatives of legal sciences and other branches of scientific research). In addition, the paper analyzes the history of the origin of worldviews and scientific ideas about the principle of reasonableness in law, as well as identifies the factors that led to its separation as an object of scientific knowledge. It is substantiated that thinkers of the Antiquity period comprehend and reveal the ideas of reason in law (law) through a set of other concepts and categories that form a connection with this ideological principle, namely: the logos, which is defined as the eternal world order; law, legislative activity as a manifestation of the logos, the ability to formalize the logos; wisdom as a result of education and human experience, public interests and balancing the interests of various subjects of social relations; common sense, etc. Summarizes the position that in the views of thinkers arises and develops the worldview that law is a product of mental human activity, which should be educated, vitally wise, and therefore able to think, analyze the objective needs of society, distinguish between «good» and «evil». This idea became a component of sophistry, which later in the views of Roman jurists expanded and rethought in terms of lawmaking and law enforcement on the mental abilities of man, who invest in the content of laws rational ideas and able to understand and apply them with the mind. It is stated that despite the fact that in the legal teachings of antiquity the principle of reasonableness in law has not yet become an independent subject of worldview or scientific understanding, nor has it been singled out as a separate legal category, it should be noted the research interest of ancient thinkers in development and improvement law, its nature, essence and functional purpose, actions and effectiveness, which are understood, including through the prism of ideas about human wisdom (mind), rationality in law, features of the implementation of law in human consciousness and behavior. Keywords: law principles, functions law principles, principle of reasonableness in law, role of principle of reasonableness in law, system law principles.

FROM LAW TO DHARMA: STATE LAW AND SACRED DUTY IN ANCIENT INDIA

AbstractThe legal treatises of ancient India, called Dharmaśāstras, are often read as records of the initial emergence of law from religion in South Asia. The Dharmaśāstras teach the dharma, or “sacred duty,” of different members of society. It is one of the dharmas of the king to adjudicate disputes that come before his courts, and it is widely accepted that a need to articulate the king's dharma led the composers of the Dharmaśāstras over time to fashion rules for state courts, a body of law called vyavahāra. Scholars such as Henry Sumner Maine and Max Weber saw in the Dharmaśāstras evidence of the disentanglement and rationalization of law, respectively. A close examination of our sources, however, shows that the law of royal courts emerged not within the Dharmaśāstra tradition, but within an adjacent and decidedly more secular tradition of statecraft. It was gradually absorbed into Dharmaśāstra texts, where it was reconfigured as sacred duty and its historical origins were obscured. This article argues that the early history of state law in India is best described, therefore, not as a transition from dharma to law, but as a transition from law to dharma.

PENYAMAAN BATAS USIA PERKAWINAN PRIA DAN WANITA PERSPEKTIF MAQASID AL-USRAH (ANALISIS PUTUSAN MAHKAMAH KONSTITUSI NOMOR 22/PUU-XV/2017)

Marital Age Arrangement as ruled by UU Perkawinan and KHI is part of open legal policy category and has legal validity according to regulation of Constitutional Court (Mahkamah Konsitusi). Nevertheless, legal policy must be positioned unexceeding authority, unbreaking morality and rationality of law, not to impact intolerable injustices, and not clearly contradicting Indonesian Constitution (UUD) 1945. Hence, relating to questioning phrases in article 7 verse 1 “in 16 years old” as part of Marital Law N. 1/1974. The Constitutional Court on its court decision explains that that provision is has not binding legal force. This decision has implicated obligation of equalizating minimum age of marriage (both male and female). Then, what is maqasid al-usrah thought on this decision? To answer that question, this research will explain criteria of adulthood from Islamic Law perspective and maqasid al-usrah thought on equalizating minimum age of marrige, both male or female. Islamic Law, throught its concept of baligh and `aqil, has opinion that measure of adulthood (both male and female) is same, where they have reached 15 years of age. Biologically, male is considered adult when he released sperm firstly. And female is considered adult when she menstruasting for the first time, or her sense of smell is more sensitive, or changing vocal sound, or growing some hair around her vagina and on armpits. Equalizating marital age between man and woman is justified based on maqasid al-usrah and Islamically legal as long as its purpose is implementing the marital goals.

MAX WEBER E A RECEPÇÃO DO DIREITO ROMANO

Max Weber aborda o tema da recepção do direito romano na Idade Média e Moderna europeia no âmbito de sua sociologia tipológico-comparativa do direito. Buscando definir as bases para a compreensão da singularidade do processo de racionalização ocidental – e, dentro dele, da racionalização do direito – a recepção aparece como um importante fator da produção das qualidades formais do moderno direito sistematicamente estatuído e aplicado por profissionais especializados, cuja marca principal é um racionalismo formal baseado na interpretação lógica do sentido. Esse racionalismo de abstração lógica, que acabou tornando-se a característica principal do trabalho jurídico moderno, foi o produto e o legado para a modernidade da jurisprudência do direito comum, desenvolvida a partir da recepção e dedicada à sistematização do direito romano recebido.

Supping with the Devil? Indicators and the rise of managerial rationality in law

AbstractManagerial devices are rapidly developing as a means for driving the legal performance of organisations, including those of states and corporations. This paper explores the managerial rationality underpinning global legal indicators, and the constraints they convey on institutional behaviour. In particular, it argues that indicators are better understood as part of a system of management control and distributed governance, which is steadily eroding state-centred forms of authority, including state law. In this context, legitimacy and reactivity are contingent to their cycle of production and implementation, which is fourfold: data-collecting, benchmarking, auditing and allocating incentives. Each process is meant to generate respectively subjectification, self-knowledge by comparison, accountability and stimulus for action. Indicators with higher degrees of legitimacy become entrenched in institutional practices and legal decision-making processes. The paper concludes that regulatory spaces where indicators unfold need critical and political scrutiny to expose their pernicious effects, undesirable uses and inevitable misuses.

Dharma and Natural Law: Max Weber's Comparison of Hindu and (Occidental) Christian Legal Traditions

In this essay, I argue that Max Weber's treatment of the western natural law tradition, in comparison to Hindu legal traditions, enables us to see his sociology of law from a revealing angle. In particular, this comparison directs our attention to important complications of meaning in Weber's famous contrast between formal and substantive rationality in law. I contend that, in his encounter with the Dharmaśāstras, Weber met jurisprudential treatises that fit within his definition of formal rationality in law. Seeing why he nonetheless did not regard them so affords new insights into his ideal-typical conceptions of formal and substantive rationality in law, and, more broadly, into his conceptions of the relationship between law and religion. Offering a tentative critique of Weber's arguments for the uniqueness of western, ‘scriptural’ traditions of law, I nevertheless also seek to show that his scholarship on the religiously-inflected legal traditions of India and the west merits continued attention.

Rationality in law

Автор анализирует основания системно-коммуникативной теории Н.Лумана в применении к проблеме рациональности в праве. Одним из главных преимуществ подхода Лумана видится отказ от субъектоцентристской интерпретации рациональности. Это обстоятельство позволяет рассматривать рациональность как интегральное свойство правовой системы, характеризующее меру еe чувствительности к процессам, происходящим вне системы. Автор анализирует значение понятий «нормативной закрытости» и «когнитивной открытости» в обосновании системного подхода к проблеме юридической рациональности. Рассматривается конструктивная функция парадоксов в праве, делается вывод о том, что парадоксы являются следствием «открытой структуры права» и во многом обеспечивают гибкость правоприменения.

Tendencias evolutivas en el Derecho

Manfred Rehbinder (Berlín 1935), asistente de Ernst E. Hirsch, se habilita en la Freie Universität Berlin, profesor en las Universidades de Bielefeld (1969-1973) y Zúrich (1973- 2003), y es —así lo señala por ejemplo Alfons Bora— uno de los precursores de la sociología jurídica de carácter empírico. Sin embargo, el texto que se presenta, y que fue publicado en los Anales en su número dedicado a la sociología del derecho (número 13, 1973), posee un carácter eminentemente teórico. Apoyándose en el conocimiento del derecho positivo alemán, Manfred Rehbinder traza una serie de tendencias generales que resultan de gran utilidad para comprender los notables cambios que acaecían en aquel entonces y cuyos ecos resuenan en la actualidad: el síntoma novedoso se ha convertido hoy en lugar común. La racionalización del derecho, su homogeneización, el incremento de la materia, las estructuras jurídicas y el apoyo del derecho en paradigmas científicos son las líneas evolutivas a las que se presta atención en este trabajo.

The Roberts Court and the Technicalization of Correctional Law

ABSTRACTThere is minimum scholarship on the sentencing and corrections decisions of the U.S. Supreme Court under the leadership of Chief Justice John Roberts, and few analyses of the relationship of this jurisprudence to historical developments in correctional law. This study examines 63 such decisions rendered during the 2006 to 2013 terms. Results indicate a concentration of rulings in the areas of sentencing and habeas, and a majority of decisions focused on technical matters of substance and procedure rather than substantive constitutional concerns; only four milestone substantive constitutional decisions were identified. A large proportion of rulings were sharply divided, and more than one half favored convicted parties. Findings are interpreted using Weber’s conception of the formal rationalization of law and in terms of ideological legitimacy of the Court. The technicalization trend is conceptualized as an extension and sustaining force of the Rehnquist Court’s conservative deferentialism, an ongoing scaling back of the “hands-on” era in corrections.

On transparent law, good legislation and accessibility to legal information: Towards an integrated legal information system

This paper connects to Jon Bing's great vision of an integrated national legal information system. The intention of this paper is to variegate Bing's vision of an integrated information system by shifting the focus to the lay users, thus to those, who are subject to the law. The modified vision is an integrated information system that supports intelligible access to law for the citizens. This presupposes however an unambiguous and transparent legal system. Accordingly, it is also stressed that intelligent legal knowledge engineering has high potential to increase precision and rationality in law, and hence safeguard the predictability of law and legal certainty. The central hypothesis is that putting the person who is subject to the law at the centre provides more rational reason to aim for the greatest possible precision of law by exploiting the means and technologies of our time than to uphold strategic vagueness. On this basis, the paper proposes the development of a basic set of controllable and justiciable basic legal drafting standards on EU and on national level, and promotes a transparency by design approach for legal knowledge engineering in order to enhance precision, integrity, comprehensibility and accessibility of law. Similarly to Jon Bing's vision, this modified vision of an integrated legal information systems is, most probably, also likely to remain unfulfilled. However, what would science be without visions and (science) fictions?

Visionary Hope

Visionary Hope

Rationality in Law and Legal Theory: An Ethics Symposium, April 12–13, 2013, Georgetown University Law Center

Rationality in Law and Legal Theory: An <i>Ethics</i> Symposium, April 12–13, 2013, Georgetown University Law Center

Rationality in Law and Economics

Alguns pressupostos da Analise Economica do Direito tem sido criticados a medida que pesquisas empiricas questionam sua viabilidade. Em particular, a premissa de que agentes consistentemente agem de forma racional e com seu interesse proprio em mente parece problematica. O que as criticas significam para a defensabilidade da Analise Economica do Direito depende em grande parte das perguntas: (1) se alguns elementos sao inatacaveis face as objecoes de teoria alternativas e (2) se a alternativa compoe um todo sistemico. Acredita-se que a Analise Economica do Direito pode ser recuperada se for minimizada e suas ambicoes temperadas, o que significa focar em seus elementos a priori , estaveis e inerentes a metodologia.

Conceptions of rationality in law and economics

Law and economics is going through a paradigm shift as the influential behavioral school is challenging and remolding its very foundation, i.e., homoeconomicus model. However, neither of the approaches captures the essence of interaction between entrepreneurial heterogeneous agents. The Misesian homoagens approach adequately addresses the deficiencies of the predominant paradigm, opening doors to a far richer legal-economic analysis incorporating real world dynamics of complex market processes.

The Persistence of Formalism: Towards a Situated Critique beyond the Classic Separation of Powers

Formalism persists everywhere despite 100 years of critical legal theory. The reasons for that are sociological and political and include the persistence of the separation of powers idea as a central concept for the theory of law. In Brazil, this phenomenon manifests itself acutely for two supplementary reasons: (1) the lack of a real differentiation between academic research and professional lawyering and (2) the influence of neo-liberal economic thought.The persistence of formalism is a serious problem for Brazilian development since it naturalizes the existing institutions and their related power positions, creating an obstacle to any project of development that proposes something new. It blocks the development of a critical and reflexive knowledge on institutions, shortening institutional imagination to projects that could transform Brazilian reality.The main objective of this article is to develop a critique of formalism useful both as a general method to criticize formalism and as a tool to criticize its Brazilian manifestation. It will be argued here that the critique of formalism fails when it is only theoretical. An efficient critique must also grasp the ideas and the social relations responsible to reproduce formalism as a conceptual idea that informs social practices.To do that, this article will first propose a characterization of Brazilian formalism that does not fit in the Formalism X Instrumentalism dichotomy and is more adequate to grasp how law rationality works in countries from the Continental Law tradition. Afterwards, it will identify the power positions and the respective ideologies responsible to reproduce formalism in Brazil, giving criticism a sociological basis. Finally, it will show that only a positive view of what law should be will able to overcome formalism, both as a philosophical idea and as a social practice. In its final part, a sketch of such a view will be presented.