Polityka, politologia, administracja publiczna
Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer
Wesen und Entwicklung der Staatsgerichtsbarkeit. Überprüfung von Verwaltungsakten durch die ordentlichen Gerichte: Verhandlungen der Tagung der Deutschen Staatsrechtslehrer zu Wien am 23. und 24. April 1928
Frontmatter -- Inhalt -- I. Eröffnung -- II. Erster Beratungsgegenstand: Wesen und Entwicklung der Staatsgerichtsbarkeit -- III. 23Zweiter Beratungsgegenstand. Überprüfung yon Yerwaltungsakten durch die ordentlichen Gerichte -- IV. Verzeichnis der Redner -- V. Verzeichnis der Mitglieder der Vereinigung der deutschen Staatsrechtslehrer -- VI. Satzung der Vereinigung
Wesen und Entwicklung der Staatsgerichtsbarkeit. Überprüfung von Verwaltungsakten durch die ordentlichen Gerichte
Kelsen's Development of the Fehlerkalkuel-Theory
In this article the author follows the arguments of the Vienna School of Legal Positivism, and especially of Hans Kelsen, as concerns the intellectual topos of "law contrary to law". The issues dealt with feature under various headings - albeit always prominently - in the national schools of legal theory. What distinguishes the Viennese approach is the generality and abstractness which facilitate the unification of legal phenomena generally considered unrelated. The goal of the article is threefold: firstly, to bring the important, albeit mostly maltreated theory of the Fehlerkalkul ("error-calculus") into the light of theoretical attention; secondly, to demonstrate Kelsen's method of developing legal philosophy only given concrete problems of the positive law and its theory; finally, to deal with criticism.
What is Justice?: Justice, Law, and Politics in the Mirror of Science; Collected Essays
Tractatus Logico-Philosophicus: A New Translation
More than a century after its composition, Tractatus Logico-Philosophicus--Wittgenstein's first masterwork, and the only book he published during his lifetime--endures as the definitive modern text on what logic can and cannot do. Since its first English-language publication in 1922, this profoundly enigmatic work has inspired philosophers and non-philosophers alike. Consisting of 525 hierarchically numbered statements, each one "self-evident," Tractatus Logico-Philosophicus is imbued, as translator Damion Searls writes, with the kind of cryptic grandeur and awe-inspiring opacity we might expect--might want--from such an iconic philosopher. Yet earlier translations, in their efforts to excessively copy German phrasing and syntax, range from stilted, even redolently Victorian, to downright impenetrable.With this new translation and insightful introduction on the language of the book, Searls finally does justice to Wittgenstein's masterpiece, capturing the fluid and forceful prose of the original without sacrificing any of its philosophical rigor. Indeed, in freeing the translation from the grip of the German language--revisiting, especially, the nouns and impersonal verbs that don't convey in English the precision and intensity of the German--Searls renders Wittgenstein's philosophy clearer and more accessible than ever before.Featuring a preface by eminent Wittgenstein scholar Marjorie Perloff, this bilingual, facing-page edition promises to become the standard for generations to come.
Überwindung der Metaphysik durch logische Analyse der Sprache
Kelsenian Legal Science and the Nature of Law
Natural Law and the Nature of Law: Kelsen’s Paradox |
Natural Law and the Nature of Law: Kelsen’s Paradox | springerprofessional.de
In a series of essays published from the late 1920s up to the mid-1960s, Hans Kelsen carried out a radical critique of natural law theory. The present paper purports to provide an analytical reconstruction and critical assessment of such a critique. It contains two parts. Part one surveys the fundamentals of Kelsen’s argumentative strategy against natural law and its theorists. Part two considers, in turn, two critical reactions to Kelsen’s criticisms: by Edgar Bodenheimer, on behalf of traditional natural law theory; by Robert P. George, on behalf of “the new natural law theory”. As the analysis suggests, Kelsen’s critique stands up to the criticisms.
Publisher: Klub Revus – Center za raziskovanje evropske ustavnosti in demokracije
Revus. Journal for Constitutional Theory and Philosophy of Law / Revija za ustavno teorijo in filozofijo prava
This is the English version of Jerzy Wroblewski's major work in Polish, S~dowe Stosowania Prawa (translated in his own preferred terms as 'The Judicial Application of Law'). The present translation arose out of a visit by the author to Scotland in 1989. In that year, the Carnegie Trust for the Universities of Scotland made it possible for Jerzy Wroblewski to spend six months as a Carnegie Fellow in the Centre for Criminology and the Social and Philosophical Study of Law at the University of Edinburgh. During that time he took a notably active part in the intellectual life of the Centre and the Faculty of Law. He gave freely of his time in teaching and advising students and also produced a series of original articles on topics connected with legal reasoning and law and computers. His major task while he was here, however, was to prepare a translation of S~dowe Stosowania Prawa, and this he accomplished to the extent of completing a preliminary draft. Zenon Bankowski and Neil MacCormickwere to help him in improving this linguistically and preparing the final text for publication. Wroblewski warned us, having finished his draft with great labour, that the greater labour would be in the polishing of it. For we would have, as he joked, 'to translate my English into English'. And certainly, we found it extremely time-consuming, so as to defy completion during his stay in Edinburgh.
Metaphysical Grounding, Understanding the Structure of Reality
Hans Kelsen' s legal theory : a diachronic point of view / Edited by Letizia Gianformaggio
Toward a Periodization of the Pure Theory of Law.
The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law
This volume provides the first English translation of Hans Kelsen's and Carl Schmitt's influential Weimar-era debate on constitutional guardianship and the legitimacy of constitutional review. It includes Kelsen's seminal piece, 'The Nature and Development of Constitutional Adjudication', as well as key extracts from the 'Guardian of the Constitution' which present Schmitt's argument against constitutional review. Also included are Kelsen's review of Schmitt's 'Guardian of the Constitution', as well as some further material by Kelsen and Schmitt on presidential dictatorship under Article 48 of the Weimar Constitution. These texts show Kelsen and Schmitt responding to one another, in the context of a debate focused on a concrete constitutional crisis, thus allowing the reader to assess the plausibility of Kelsen's and Schmitt's legal and constitutional theories.
Stanisław Ehrlich’s Critique of Legal Dogmatics: Then and Now
The main aim of this paper is to reconstruct Stanisław Ehrlich’s critique of legal dogmatics by which he understood a legal discipline that explains in a systematic manner the normative material which consists of description, classification and systematization of norms. As an additional aim of this article is to remind about Ehrlich’s achievements and contribution to the regional legal theory, this is preceded by the author’s biographical note. The reconstruction of Ehrlich’s critique of legal dogmatics co…
Stanisław Ehrlich’s Critique of Legal Dogmatics
On the So-called Legal Dogmatics, Sociology of Law and Political Science (A Polemic paper)
Understanding Sovereignty through Kelsen/Schmitt
Kelsen and Schmitt, two leading legal theorists of the twentieth century, constitute a powerful pair that sheds light on the intertwining of politics and law in the phenomenon of sovereignty. Although their conceptions of sovereignty are far apart, they are interconnected as different ways of making sense of the same social phenomenon, or what I call the 'practice of sovereignty', whereby an ultimately unauthorised authority continuously authorises itself as the authority and the rest by and large accept this, acquiesce in this, or are made to do so. Having clarified their differences and interconnection, I explore some of the implications of the two writers' differing conceptions of sovereignty and of the practice of sovereignty that underlie them.
A Dynamic Approach to Hans Kelsen's General Theory of Norms
This timely and compelling book delves into the dynamic interpretation of Hans Kelsen’s General Theory of Norms through the lens of 21st-century jurisprudential debates. Engaging with key contemporary philosophical concepts such as fictionalism in the philosophy of science, explanation and understanding, and supervenience, this book sheds new light on Kelsen’s original ideas.By offering a contemporary interpretation of his later work, it re-examines classic concepts known from the ‘Pure Theory of Law’ like the basic norm, the separation of ‘is’ and ‘ought,’ validity and efficacy, imputation, and the concept of the legal norm. Integrating modern philosophy with Kelsen’s lasting ideas, this book presents a novel theoretical landscape, inviting readers to explore fresh perspectives on Kelsen’s contributions to legal theory and emphasising its enduring relevance.
Contemporary Perspectives on Legal Obligation
Hans Kelsen as outlier: The defence of a radical norm theory
In early work, Hans Kelsen challenged predecessors and contemporaries with his utterly sceptical view on the role of the imperative in the law, a view especially manifest in his first major treatise, Main Problems in the Theory of Public Law (1911). After a good bit of pulling and hauling, Kelsen arrives, a quarter of a century later, at the view that empowerment is the fundamental modality of the legal norm, with obligation as a derivative concept. Officials are empowered to impose sanctions on legal subjects. To say that an official is obligated to impose a sanction is to say that a second official, at a higher level (Stufe) in the Stufenbau or hierarchical construction of the legal system, is empowered to impose a sanction on the first official should the first official fail to impose a sanction on the legal subject. This marks the completion of Kelsen’s long quest to eliminate the imperative with its – so Kelsen – moral connotations.
Concretized Norm and Sanction qua Fact in the Vienna School's <Stufenbaulehre
Abstract At the bottom level of the hierarchical structure ( Stufenbau ) of the legal system, the transition from “ought” to “is” has not been given its due. I argue that an additional level, that of fully concretized norms, belongs in the hierarchy. This sheds light on precisely where and how the transition from “ought” to “is” takes place. Whereas the fully concretized norm marks the bottom level in the hierarchy of norms, the coercive act or sanction qua fact is not found in the hierarchy, contrary to what A dolf J ulius M erkl and H ans K elsen would have us believe.
Philosophy and Phenomenological Research
Philosophical Analysis: The Concept Grounding View
Routledge Handbook of Metaphysical Grounding
The Routledge handbook of metaphysical grounding
A clarification and defense of the notion of grounding
On the Fourfold Root of the Principle of Sufficient Reason, and on the Will in Nature; Two Essays
The ground of ground, essence, and explanation
Abstract This paper is about the so-called meta-grounding question, i.e. the question of what grounds grounding facts of the sort ‘ ϕ is grounded in Γ ’. An answer to this question is pressing since some plausible assumptions about grounding and fundamentality entail that grounding facts must be grounded. There are three different accounts on the market which each answer the meta-grounding question differently: Bennett’s and deRosset’s “Straight Forward Account” (SFA), Litland’s “Zero-Grounding Account” (ZGA), and “Grounding Essentialism” (GE). I argue that if grounding is to be regarded as metaphysical explanation (i.e. if unionism is true), (GE) is to be preferred over (ZGA) and (SFA) as only (GE) is compatible with a crucial consequence of the thought that grounding is metaphysical explanation. In this manner the paper contributes not only to discussions about the ground of ground but also to the ongoing debate concerning the relationship between ground, essence, and explanation.
Der soziologische und der juristische staatsbegriff: kritische untersuchung des verhältnisses von staat und recht
Rechtswissenschaft und Recht: Erledigung eines Versuchs zur Überwindung der "Rechtsdogmatik"
Multicentrism as an Emerging Paradigm in Legal Theory
The Social Sources Thesis. Metaphysic and Metaphilosophy
Normentheorie als Grundlage der Jurisprudenz und Ethik
Logischer Empirismus und Reine Rechtslehre
Die Wiener Schule und der Moralische Realismus. Ein Problemskitze
Hare has written a clear, brief, and readable introduction to ethics which looks at all the fundamental problems of the subject.
Metaphysics Research Lab, Stanford University
The notion of fundamentality, as it is used in metaphysics, aims tocapture the idea that there is something basic or primitive in theworld. This metaphysical notion is related to the vernacular use of“fundamental”, but philosophers have also put forwardvarious technical definitions of the notion. Among the mostinfluential of these is the definition of absolutefundamentality in terms of ontological independence orungroundedness. Accordingly, the notion of fundamentality isoften associated with these two other technical notions, covered under ontological dependence and metaphysical grounding in this encyclopedia., Why are philosophers interested in fundamentality? One reason comesfrom a certain view of science. It is not uncommon to think thatparticle physics has some special role in our inquiry into thestructure of reality. After all, every material entity is made up offundamental particles. So, one might think that particle physics aimsto describe the fundamental level of reality, which containsthe basic building blocks of nature. We can then employ the notion ofrelative fundamentality, which enables us to express thehierarchical nature of reality disclosed by science, according towhich the facts of biochemistry depend on the facts of elementarychemistry, which depend in turn on the allegedly fundamental facts offundamental particle physics., The thought that this priority ordering terminates at the fundamentallevel is often expressed with the notion of well-foundedness.The view that reality is well-founded in the relevant sense is calledmetaphysical foundationalism, in contrast withmetaphysical infinitism. A further option, which underminesthe priority ordering and suggests that dependence chains can formloops, is called metaphysical coherentism., We can identify two key tasks for the notion of fundamentality. Thefirst is to capture the idea that there is a foundation of being,which consists of independent entities. The second is tocapture the idea that the fundamental entities constitute acomplete basis that all else depends on. These tasks arerelated. In fact, the first would seem to require the second, but notthe other way around. We will see that prioritizing one or the otherof these tasks may result in different accounts of fundamentality. Thesecond task may be applied to relative fundamentality and used toexpress the idea that there is a hierarchy of being whereby someentities are more fundamental than others, although strictly speakingthis hierarchical picture is independent of the notion of a completebasis., This entry will focus on the contemporary discussion, but many of theideas debated in the contemporary literature have been around formillennia. We now have the tools to make these important ideas muchmore precise. Relevant historical issues include ancient atomism(e.g., Leucippus and Democritus, see the separate entry on ancient atomism), Aristotle’s many discussions of priority (see, e.g., Peramatzis2011 and the articles in Sirkel & Tahko 2014), Aquinas’sdiscussion of the first cause (see the entry on the cosmological argument), and the principle of sufficient reason, as discussed by Spinoza and Leibniz, among others.
In this article, I argue, inter alia, that Kelsen’s mature view—as expressed in, and around the time of, the second edition of Reine Rechtslehre—was that of a metaethical relativist, and that the commitment to metaethical relativism was the reason why Kelsen defended democracy as well as tolerance in the shape of a constitutionally guaranteed freedom of thought. I also consider the possibility that in his post-1960 phase Kelsen abandoned metaethical relativism for moral fictionalism, but argue that, on the whole, a relativist interpretation of Kelsen’s late legal philosophy is to be preferred to a fictionalist interpretation.
Savellos, E.; Yalchin, O. (Eds.) Supervenience
Wittgenstein on Rules and Private Language: An Elementary Exposition
Archiv fur Rechts- und Sozialphilosophie
Fictionalising Kelsen's Pure Theory of law
Hermeneutic Interpretation and Pragmatic Interpretation
The Explanatory Demands of Grounding in Law
A new strategy in philosophy of law appeals to explanatory gap arguments to attack legal positivism. We argue that the strategy faces a dilemma, which derives from two available readings of the constraint it places on legal grounding. To this end, we elaborate the most promising ways of spelling out the epistemic constraints governing law-determination and show that each of the arguments based on them has problems. Throughout the paper, we evaluate a number of explanatory requirements, ultimately with a view to shedding light on the explanatory nature of both grounding in general and legal grounding in particular.
Phenomenal Concepts and Phenomenal Knowledge: New Essays on Consciousness and Physicalism
Phenomenal Concepts and the Explanatory Gap
Philosophers have reacted in different ways to the apparent explanatory gap between physical processes and consciousness. Some deny that any explanatory gap exists at all. Some hold that there is an explanatory gap for now, but that it will eventually be closed. Some hold that the explanatory gap corresponds to an ontological gap in nature. This chapter explores another reaction to the explanatory gap — those who react in this way agree that there is an explanatory gap, but they hold that it stems from the way we think about consciousness. In particular, this view locates the gap in the relationship between our concepts of physical processes and our concepts of consciousness, rather than in the relationship between physical processes and consciousness themselves.
Explanation comes in many forms. Scientific explanationstypically concern thenatural world, and typically proceed by citing causes of naturalphenomena or subsuming them under empirical laws in some illuminatingway. Mathematical explanationstypically concern the worldof quantity and abstract structure, and typically proceed by proving atheorem in some illuminating way. The present entry focuses on afamily of explanations widely thought to be in some sensedistinctively metaphysical in character. Consider thefollowing non-exhaustive list of putative examples, which ought to berecognizable to any metaphysician:, Statements like (1)–(4) at least purport to expressexplanations on their surface: “because” is acommon explanatory idiom, and any of a number of others could havebeen used instead (e.g., “in virtue of”, “accountsfor”, “is the reason why”, “makes it the casethat”, or simply “explains”). Moreover, statementslike (1)–(4) are metaphysical at least in the sensethat they are commonly put forward and assessed in metaphysics, andproceed by citing distinctions of importance to metaphysics in someilluminating way. These include distinctions of property-instance, determinable-determinate, essence-accident, and analysans-analysandumthat appear to be at play in the examples above; others might include part-whole (e.g., “The vase is fragile because of its crystallinemicrostructure”) and member-set (e.g., “The set {Socrates} exists because Socratesexists”), among potentially others still., Interest in metaphysical explanation has witnessed a recent spike, yetthe topic is not a recent metaphysical innovation. Indeed, it is frontand center in the very first sentence of the field’sfoundational text, when Aristotle tells us that “All humanbeings by nature desire to know” (Metaphysics I.1,980a21; see the entry on Aristotle’s metaphysics). For Aristotle, this desire is not fully satisfied until oneunderstands the basic explanatory factors responsible for the broadstructure of reality (see Lear 1988: chs. 1 and 6). Set aside whetherAristotle’s claim about human nature is correct. Even if it isnot, a wealth of philosophical questions about the nature, varieties,and scope of metaphysical explanation emerge. Are these“explanatory factors” of one type or many, and what arethey? What is it about “the broad structure of reality”that they explain? What type of understanding is gained by graspingthese explanatory factors? And even if human beings by nature desiremetaphysical explanations, to what extent (if any) can this naturaldesire actually be satisfied?, Historical interest in metaphysical explanation was notAristotle’s alone. Philosophers as diverse as Plato,Nāgārjuna, Ibn Sīnā (Avicenna), William of Ockham,Spinoza, Leibniz, Bolzano, Duhem, and Husserl (see Mulligan 2004 andalso related entries below), among many others, explicitly grappled with questions such asthose above, although some in a more skeptical vein than others.Moreover, countless other philosophers both inside metaphysics and outclearly presuppose that the notion is in good standing when discussingthe various types of metaphysical explanation that we discuss below.Our goal in the present entry, however, is not to provide a fullaccounting of how the concept has developed over time—here, wefocus on framing the main questions and disputes that emerge when oneattempts to state what metaphysical explanation is, exactly, and howit is supposed to work (if at all)., Our first order of business is to clarify in what sense metaphysicalexplanation is a form of non-causal explanation (§1), and survey some putative varieties of metaphysical explanation (§2). Afterwards, we survey three central, connected choice-points abouthow to think about metaphysical explanation at the most abstractlevel. How are metaphysical explanations related to notions ofnon-causal relationships such as property-instance, part-whole,essence-accident, derivative-ground, role-realizer, and others ofcentral metaphysical importance that metaphysical explanations aresaid to derive their explanatory power from (§3)? To what extent is metaphysical explanation a unified phenomenon (§4)? And to what extent is it an objective, mind-independent phenomenon (§5)? Next, we survey a recent research program that attempts to extend oneof the four main models of scientificexplanation—causal-mechanistic, nomological, unificationist, andpragmatic—to metaphysical explanation (§6). We conclude by surveying some questions about the scope ofmetaphysical explanation (§7)., A clarificatory comment: for stylistic reasons, we will continue toshift back-and-forth between speaking of explanations astruths of a certain kind that can be discovered and arguedover, versus speaking of them as activities by which thosetruths are communicated or understood. That distinction, as well aswhether explanations are in fact something else (e.g.,theories in a model-theoretic sense), will rise to theforefront later, but for now, we will speak loosely.
Metaphysical grounding: Understadning and structure of reality
Grounding, transitivity, and contrastivity
Aristotelian Society Supplementary Volume
Abstract. If norms are neither true nor false, can logical relations such as contradiction and entailment obtain between them? Earlier logical positivists and also Hans Kelsen in his later years have answered the question with No. While appreciating the seriousness of the problem, the author of the present paper makes a fresh attempt to answer the question with Yes. His answer presupposes that norms can be judged from the point of view of their rationality. The deontic loic or logic of norms built on this foundation is much more restricted, however, than tae “classical” systems. This again is a consequence of the author's opinion that the sentential connectives (negation, conjunction, disjunction, etc.) apply to norms only on condition that they can be “shifted” from joining norm-formulations to the descriptive contents of the norms themselves.
According to a line of thought tracing from Descartes, Leibniz, and Locke through to Kripke, Levine, and Chalmers, there is a special explanatory gap arising between the physical and the phenomenal. I argue that the physical-phenomenal gap is not special but rather that such gaps are pervasive, lurking in the transition from the physical to the chemical and in every concrete transition from more to less fundamental. Correlatively, I argue that such gaps are unproblematic, so long as they are bridged by substantive principles of metaphysical grounding. So I articulate a form of physicalism — “ground physicalism” — on which the physical grounds the chemical, the biological, and the psychological, and explain how ground physicalism resolves explanatory gap worries.
Metamorphosis in Hans Kelsen's Legal Philosophy
Two major questions stem from the fundamental shift in Hans Kelsen's legal philosophy that takes place in 1960 and the years thereafter: first, the scope of the shift and, second, its explanation. On the first question, I argue that the shift is not limited to Kelsen's rejection of the applicability of logic to legal norms. Rather, it reaches to his rejection of the entire Kantian edifice of his earlier work. On the second question, I argue that the explanation for the shift has a conceptual dimension as well as a historico-biographical dimension. That is, I argue that Kelsen's rejection of the principle of non-contradiction vis-à-vis legal norms reaches to the Kantian edifice in that the principle was presupposed in Kelsen's earlier work and appears, expressis verbis, in his ‘Kantian filter’. And I argue that certain historico-biographical data are germane, including, quite possibly, the earlier revolution in Kelsen's thought, that of 1939–40.
The Idea of a Pure Theory of Law: An Interpretation and Defence
Politeja. Pismo Wydziału Studiów Międzynarodowych i Politycznych Uniwersytetu Jagiellońskiego
Philosophical Foundations of the Nature of Law
Farewell to Conceptual Analysis (in Jurisprudence)
This chapter attempts to establish the thesis that analytical legal philosophy is not an exercise in conceptual analysis. While conceptual analysis may have played some role in H. L. A. Hart's jurisprudence, it was rather tangential to the main project of his theory. Hart's main objective in The Concept of Law was not essentially different from that of Austin, namely, to provide a reductionist theory of law. The main purpose of Hart's theory was to offer an explanation of law in terms of something more foundational in nature, that is, in terms of social facts, which, in turn, can be explained by reference to people's actual conduct, beliefs, and attitudes. Hart's objection to Austin's reductionism was not to the idea of reduction but to the particular building blocks that Austin used in articulating his theory. The chapter argues that the main methodological thrust of legal positivism is reductionism, not conceptual analysis. And the main objections to legal positivism are best seen as a denial of the possibility of such a reduction.
Empty Names, Fiction and the Puzzles of Non-Existence
Mimesis as Make-Believe: On the Foundations of the Representational Arts
Representations—in visual arts and in fiction—play an important part in our lives and culture. Kendall Walton presents here a theory of the nature of representation, which illuminates its many varieties and goes a long way toward explaining its importance. Drawing analogies to children’s make believe activities, Walton constructs a theory that addresses a broad range of issues: the distinction between fiction and nonfiction, how depiction differs from description, the notion of points of view in the arts, and what it means for one work to be more “realistic” than another. He explores the relation between appreciation and criticism, the character of emotional reactions to literary and visual representations, and what it means to be caught up emotionally in imaginary events. Walton’s theory also provides solutions to the thorny philosophical problems of the existence—or ontological standing—of fictitious beings, and the meaning of statements referring to them. And it leads to striking insights concerning imagination, dreams, nonliteral uses of language, and the status of legends and myths. Throughout Walton applies his theoretical perspective to particular cases; his analysis is illustrated by a rich array of examples drawn from literature, painting, sculpture, theater, and film. Mimesis as Make-Believe is important reading for everyone interested in the workings of representational art.
Realists about metaphysics hold that the aim of the enterprise is to state the truth about the fundamental structure of reality and the principles by means of which reality as a whole is built up from that fundamental structure. Fictionalists hold, by contrast, that metaphysics aims to produce theories (or models) of the fundamental structure that satisfy certain self-imposed constraints: consistency with evolving science, coherence, plausibility by the standards of one or another philosophical subculture, and so on. This chapter distinguishes scientific metaphysics (the sort of metaphysics that rounds out the scientific image by settling theoretical questions unaddressed by scientists) from speculative metaphysics (the sort of metaphysics that tackles questions remote from science) and recommends a version of fictionalism about the latter.
The Metaphysics of Law: From Supervenience to Rational Justification
mathematics, philosophy of: fictionalism
mathematics, philosophy of: indispensability arguments in the
Platonism: in the philosophy of mathematics
Fictionalism about a region of discourse can provisionally becharacterized as the view that claims made within that discourse arenot best seen as aiming at literal truth but are better regarded as asort of ‘fiction’. As we will see, this firstcharacterization of fictionalism is in several ways rough. But it is auseful point of departure., This entry is divided into five main sections. The first sectioncontains a brief history and overview of fictionalist views. Thesecond section describes more carefully what different kinds offictionalist theses there are. In the third and fourth sections,important arguments for and against fictionalism are summarized. Thefifth section is devoted to a more general discussion of thephilosophical significance of fictionalism.
Law and Mind: A Survey of Law and the Cognitive Sciences
A Non-Naturalist Account of Law’s Place in Reality
This chapter aims to outline the contours of a non-naturalist account of legal phenomena. Although it does not address the relevance of cognitive sciences to law specifically, the argument developed here aims to demonstrate that the said relevance depends on the antecedent question about the requirements of explanation of legal phenomena in terms of non-legal, more basic facts. By demonstrating the failure of naturalistic facts to meet the requirements of explanation, the chapter calls into question the relevance of cognitive science to law. In the first section I propose to understand naturalism in law as an explanatory claim about the (metaphysical) determinants of legal facts. Then I explore a family of objections against physicalism in the philosophy of mind (epistemic gap arguments) and argue that they apply equally to naturalistic explanations in the legal domain. But there is a key disanalogy between the two domains: while in the philosophy of mind explanatory gap arguments show that mental phenomena involve fundamental, non-physical facts, which are explanatorily basic, in the legal domain explanatory gap arguments show that the explanation of legal facts requires us to appeal to additional non-naturalistic facts which can bridge the gap of explanation between the legal facts and their non-legal determinants. I discuss briefly two versions of legal non-naturalism, and proceed to develop the one that is based on Kelsen’s account of legal cognition which, as it turns out, is surprisingly compatible with the ground-theoretic debates in contemporary metaphysics.
Common Law – Civil Law: The Great Divide?
For Joseph Raz, the hierarchical structure of legal orders may be described more appropriately using a tree diagram than the model of a pyramid of norms. This view is tested in this chapter, paying particular attention to the differences between civil law and common law.
Fictions in Science: Philosophical Essays on Modeling and Idealisation
When philosophers consider fi ctions or fi ctional representations in science, we typically have in mind some canonical cases: idealized models,
Schriftenreiche des Hans Kelsen -Instituts
Hans Kelsen in der tschechischenund internationalen Rechtslehre
Manz'sche Verlag und Universitaetsbuchhandlung
EU-Recht und staatlichen Recht im Lichte der Stufenbaulehre
Die Wiener rechtstheoretische Schule: Schriften von Hans Kelsen, Adolf Merkl Alfred Verdross
Prolegomena einer Theorie des Rechtlichen Stufenbaues
Fictions in Science: Philosophical Essays on Modeling and Idealization
There are many ways in which we use unrealistic representations for modeling the physical world. In some cases we construct models that we know to be
Why scientific models should not be regarded as works of fiction
Exemplification, Idealization, and Scientific Understanding
The Conscious Mind: In Search of a Fundamental Theory
In what follows, I defend the view that, in some cases, fictions can genuinely explain. I begin, in section 2, by situating my approach to fictions in the context of Vaihinger’s classic account, then, in section 3, turn to the concrete case of fictional classical orbits explaining quantum spectra in modern semiclassical mechanics. In section 4, I introduce a new philosophical account of scientific explanation that I argue is capable of making sense of the explanatory power of fictions. Finally, I conclude in section 5 by relating this case study and the new philosophical account of scientific explanation back to Vaihinger’s account of fictions.
Fictions, Fictionalization, and Truth in Science
We look to science to give us not just accurate predictions but explanation and understanding of what things are and how they work. But how can science do
Hans Kelsen and Carl Schmitt. A juxtaposition
On the Origins of Hans Kelsen's Spatlehre
Hans Kelsen as outlier : The defence of a radical norm theory
In early work, Hans Kelsen challenged predecessors and contemporaries with his utterly sceptical view on the role of the imperative in the law, a view
Zur Theorie der juristischen Fiktionen. Mit besonderer Berücksichtigung von Vaihingers Philosophie des Als Ob
Introduction: The Final Form of the Pure Theory of Law
Positivism and the Separation of Law and Morals
I consider in this chapter the writings of two prominent legal philosophers, Hans Kelsen and Gustav Radbruch. Kelsen espouses a version of meta-ethical relativism and maintains that democracy presupposes such relativism, because it means that what is right today may be wrong tomorrow, and that therefore those who are in the minority today, and who are therefore wrong, ought to have a chance to become – through the democratic procedure – the majority tomorrow and thus to be right. Radbruch, too, espouses a version of meta-ethical relativism and maintains that to determine the content of law one has to consider not only (formal) justice, but also purposiveness and legal certainty, that (formal) justice and legal certainty are absolute values, whereas expediency is only a relative value, and that the judge ought to give priority to legal certainty when there is a conflict between legal certainty and justice because there is no non-relative answer to the question, “What is right?”. I object to both Kelsen’s and Radbruch’s lines of argument, that although they appear to think otherwise, the ‘ought’ in their conclusions can be nothing more than a relative ‘ought’ and that therefore their relativisms are incoherent. I also suggest two topics for further research, namely, relativist accounts of first-order legal statements and of legal disagreement.
Hans Kelsen is widely recognized as one of the most important legal theorists of the 20th century. Surprisingly, however, his political writings are not nearly as widely known as his legal theory, especially in the English-speaking world. This book fills the void between what is and isn't known about Hans Kelsen's political philosophy, and the ways that philosophy has and will continue to shape political debates inherent to democracy in the future. For the first time in English, this classic book - with an introduction by political theorist Nadia Urbinati - provides an overview of Kelsen's career and his contributions to 20th century political thought.
Das Problem der Souveränität und die Theorie des Völkerrechts
In his choice of texts, the Editor has been faced with the difficult task of selecting, from among the author's more than 600 publications, those of the greatest philosophical interest. It is chiefly the topics of value-rela­ tivism and the logic of norms that have been kept in view. The selection has also been guided by the endeavour to reprint, so far as possible, texts which have not hitherto appeared in English. At times, however, this aim has had to be discarded, in order to include works of key im­ portance and also the latest expressions of Kelsen's view. In addition to the two topics already mentioned, the Editor has con­ sidered Kelsen's discussions of the causal principle to be so far worthy of philosophical attention, that some writings on causality and account­ ability have been included in this collection of philosophical studies. OTA WEINBERGER Hans Kelsen died on April 19th, 1973. Only his work now lives, for the inspiration of future generations of jurists and philosophers. Graz, 25th April, 1973 OT A WEINBERGER TRANSLATOR'S NOTE I am obliged to the Editor for his careful scrutiny of the translation, which has led to a number of corrections and improvements in the text.
Metahysical Grounding, Understanding the Structure of Reality
Grounding and Metaphysical Explanation: It’s Complicated
Law-Determination as Grounding: A Common Grounding Framework for Jurisprudence
Science is popularly understood as being an ideal of impartial algorithmic objectivity that provides us with a realistic description of the world down to the last detail. The essays collected in this bookwritten by some of the leading experts in the fieldchallenge this popular image right at its heart, taking as their starting point that science trades not only in truth, but in fiction, too. With case studies that range from physics to economics and to biology, Fictions in Science reveals that fictions are as ubiquitous in scientific narratives and practice as they are in any other human endeavor, including literature and art. Of course scientific activity, most prominently in the formal sciences, employs logically precise algorithmic thinking. However, the key to the predictive and technological success of the empirical sciences might well lie elsewhereperhaps even in scientists extraordinary creative imagination instead. As these essays demonstrate, within the bounds of what is empirically possible, a scientists capacity for invention and creative thinking matches that of any writer or artist.
Kelsen, Hans. Pure Theory of Law. Translation from the Second German Edition by Max Knight. Berkeley: University of California Press, 1967. x, 356 pp. Reprinted 2005 by The Lawbook Exchange, Ltd. ISBN 1-58477-578-5. Paperbound. $36.95 * Second revised and enlarged edition, a complete revision of the first edition published in 1934. A landmark in the development of modern jurisprudence, the pure theory of law defines law as a system of coercive norms created by the state that rests on the validity of a generally accepted Grundnorm, or basic norm, such as the supremacy of the Constitution. Entirely self-supporting, it rejects any concept derived from metaphysics, politics, ethics, sociology, or the natural sciences. Beginning with the medieval reception of Roman law, traditional jurisprudence has maintained a dual system of "subjective" law (the rights of a person) and "objective" law (the system of norms). Throughout history this dualism has been a useful tool for putting the law in the service of politics, especially by rulers or dominant political parties. The pure theory of law destroys this dualism by replacing it with a unitary system of objective positive law that is insulated from political manipulation. Possibly the most influential jurisprudent of the twentieth century, Hans Kelsen [1881-1973] was legal adviser to Austria's last emperor and its first republican government, the founder and permanent advisor of the Supreme Constitutional Court of Austria, and the author of Austria's Constitution, which was enacted in 1920, abolished during the Anschluss, and restored in 1945. The author of more than forty books on law and legal philosophy, he is best known for this work and General Theory of Law and State. Also active as a teacher in Europe and the United States, he was Dean of the Law Faculty of the University of Vienna and taught at the universities of Cologne and Prague, the Institute of International Studies in Geneva, Harvard, Wellesley, the University of California at Berkeley, and the Naval War College.Also available in cloth.
Objectivity and Hans Kelsen’s Concept of Imputation
Der Begriff der "Zurechnung" in der Reinen Rechtlehre Hans Kelsens
Zurechnung als Operationalisierung von Verantwortung
Die Zurechnung als apriorische Kategorie in der Rechtslehre Hans Kelsens
Remarks on Kelsen's "Validity and Efficacy of the Law"
Idealization is a fundamental feature of human thought. We build simplified models in our scientific research and utopias in our political imaginations. Concepts like belief, desire, reason, and justice are bound up with idealizations and ideals. Life is a constant adjustment between the models we make and the realities we encounter. In idealizing, we proceed "as if" our representations were true, while knowing they are not. This is not a dangerous or distracting occupation, Kwame Anthony Appiah shows. Our best chance of understanding nature, society, and ourselves is to open our minds to a plurality of imperfect depictions that together allow us to manage and interpret our world. The philosopher Hans Vaihinger first delineated the "as if" impulse at the turn of the twentieth century, drawing on Kant, who argued that rational agency required us to act as if we were free. Appiah extends this strategy to examples across philosophy and the human and natural sciences. In a broad range of activities, we have some notion of the truth yet continue with theories that we recognize are, strictly speaking, false. From this vantage point, Appiah demonstrates that a picture one knows to be unreal can be a vehicle for accessing reality. As If explores how strategic untruth plays a critical role in far-flung areas of inquiry: decision theory, psychology, natural science, and political philosophy. A polymath who writes with mainstream clarity, Appiah defends the centrality of the imagination not just in the arts but in science, morality, and everyday life.
Hans Kelsen erörtert In seinem kleinen, aber gewichtigen Aufsatz von 1953 die Frage nach Gerechtigkeit als Problem der Lösung von Interessen- und Wertkonflikten und als Problem der Rechtfertigung menschlichen Verhaltens: Absolute Gerechtigkeit, so Kelsen, kann es nicht geben, relative Gerechtigkeit aber führt immerhin zu Toleranz.
Philosophy of As If: A System of the Theoretical, Practical and Religious Fictions of Mankind
Krytyka noormatywistycznej teorii prawa i państwa Hansa Kelsena
The Pure Theory as Ideal Type: Defending Kelsen on the Basis of Weberian Methodology
A set of properties A supervenes upon another set Bjust in case no two things can differ with respect toA-properties without also differing with respect to theirB-properties. In slogan form, “there cannot be anA-difference without a B-difference”., As we shall see, this slogan can be cashed out in many different ways.But to illustrate the basic idea, imagine that there is a perfectforger. Her copies of paintings not only fool the art dealers, but arein fact exact duplicates of the originals down to the preciseplacement of every molecule of pigment—indeed, down to everymicrophysical detail. Suppose that she produces such a copy of ElGreco’s A View of Toledo. It is of course differentfrom the original in various respects—it is a forgery, it wasnot painted by El Greco, it is worth quite a bit less atSotheby’s, and so forth. But the forgery is also exactlylike the original in other respects. It is the same shape, size,and weight. The surface of the canvas contains the same arrangementsof colors and shapes—a blue rectangle here, a green swirl there.Indeed, it looks just the same, at least to a single viewerunder identical lighting conditions and so forth. Perhaps it is evenjust as beautiful as the original, though that is morecontroversial., The properties that the forgery is guaranteed to share with theoriginal are those that supervene upon its microphysical properties.Two paintings that are microphysically just alike are guaranteed to bejust alike in the arrangement of colors and shapes on their canvases.That is, you cannot change the arrangement of colors and shapes on apainting’s canvas without changing its microphysical properties.This is just to say that the arrangement of colors and shapessupervenes on its microphysical properties., Supervenience is a central notion in analytic philosophy. It has beeninvoked in almost every corner of the field. For example, it has beenclaimed that aesthetic, moral, and mental properties supervene uponphysical properties. It has also been claimed that modal truthssupervene on non-modal ones, and that general truths supervene onparticular truths. Further, supervenience has been used to distinguishvarious kinds of internalism and externalism, and to test claims ofreducibility and conceptual analysis., Supervenience is related to but distinct from notions like groundingand ontological dependence. We directly address the relation betweenthese notions in §3.5 (much of that section has been part of thisentry since its initial publication in 2005).
Supervenience and Mind: Selected Philosophical Essays
Jaegwon Kim is one of the most preeminent and most influential contributors to the philosophy of mind and metaphysics. This collection of essays presents the core of his work on supervenience and mind with two sets of postscripts especially written for the book. The essays focus on such issues as the nature of causation and events, what dependency relations other than causal relations connect facts and events, the analysis of supervenience, and the mind-body problem. A central problem in the philosophy of mind is the problem of explaining how the mind can causally influence bodily processes. Professor Kim explores this problem in detail, criticizes the nonreductionist solution of it, and offers a modified reductionist solution of his own. Both professional philosophers and their graduate students will find this an invaluable collection.
Fifty years on from its original publication, HLA Hart's The Concept of Law is widely recognized as the most important work of legal philosophy published in the twentieth century. It is a classic book in the field of legal scholarship and remains the starting point for most students coming to the subject for the first time.Known as Hart's most famous work, The Concept of Law emerged from a set of lectures that Hart began to deliver in 1952 in which he developed a sophisticated view of legal positivism. Hart revolutionized the methods of jurisprudence and the philosophy of law in the English-speaking world by bringing the tools of analytic, and especially linguistic, philosophy to bear on the central problems of legal theory.In this third edition, Leslie Green provides a new introduction that sets the book in the context of subsequent developments in social and political philosophy, clarifying misunderstandings of Hart's project and highlighting central tensions and problems in the work. The Concept of Law remains a must-read for anyone interested in the great thinkers of the 20th century.
Schriftenreihe des Hans Kelsen Instituts
Die Reine Rechtslehre im Lichte des Kritischen Rationalismus
In this chapter I argue that the relation of supervenience is insufficient to account for the normative dimension of the law. I begin by analyzing in some detail the traditional ways of relating normative (especially legal) and non-normative (natural) facts or properties: separation and reduction. Having identified their flaws, I consider the possibility of rendering the relationship in question with the use of the concept of supervenience. It transpires, however, that the claim that legal facts (properties) supervene on natural facts (properties) has limitations of its own. In particular, it cannot explain the normative character of legal rules, but rather presupposes it. Therefore, supervenience turns out to be insufficient when it comes to providing a full account of the normativity of law.
Kelsen, Hans. Pure Theory of Law. Translation from the Second German Edition by Max Knight. Berkeley: University of California Press, 1967. x, 356pp. Reprinted 2002 by The Lawbook Exchange, Ltd. ISBN 1-58477-206-9. Cloth. New. $95. * The second revised and enlarged edition, being a completely revised version of the first edition which was published in 1934. Kelsen [1881-1973], was the author of more than forty works on law and legal philosophy, and is best known for this title and General Theory of Law and State. He was also the author of the Austrian Democratic Constitution, which was published in 1920, abolished during the Nazi regime, restored in 1945, and in force today. Walker calls Kelsen "possibly the most influential jurisprudent of the twentieth century." Walker, Oxford Companion to Law 699.
An Antinomy in Kelsen's Pure Theory of Law
Kein Imperativ ohne Imperator-Anmerkungen zu einer These Kelsens
Hans Kelsen's Begriff des relativen Apriori
Schriftenreihe des Hans Kelsen-Instituts
Zu Anewndbarkeit der Regeln der Logic auf Rechtsnormen
Reine Rechtslehre zwischen Kritizizsmus und analytischer Philosophie
Sprach, Performanz und Ontologie des Rechts
Uberlegungen zu Hans Kelsens "Allgemeine Theorie der Normen"
Kein Imperativ ohne Imperator. Anmerkungen zu einer Theorie Kelsens
Hans Kelsen and the Logic of Legal Systems
Kant, neokantyści, Frege, Hume, scuba diving example, problem rewolucji u Kelsena, skuteczność systemu prawa, jedność systemu prawa
LSE Law, Society and Economy Working Papers
The Basic Norm: An Unsolved Murder Mystery
Norms and Logic. Hans Kelsen and Ota Weinberger on the Ontology of Norms
The Neo-Kantian Dimension of Kelsen's Pure Theory of Law
Die Philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus
The Concept of a Legal System: An Introduction to the Theory of Legal System
Truth and Objectivity in law and Morals II
Popular Value Perceptions and Institutional Preference for Democracy in "Confucian" East Asia
A democratic recession coupled with China's rise has reopened the Asian values debate between modernizers in favor of Western liberal democracy and traditional adherents to Confucianism. Using data from the third wave of the Asian Barometer Survey (2010-2012), we reexamine this debate by considering the implications of Confucian values for democratic orientations in seven societies: Japan, South Korea, Taiwan, Hong Kong, Singapore, mainland China, and Vietnam. Our findings support the argument that, although traditionally Confucian societies have developed a belief system and culture different from the West, such a system does not preclude the emergence and divergence of democracy. Indeed, East Asians tend to define democracy in terms of social equity and good governance (performance-distributive democracy) rather than liberty and democratic procedures (liberty-procedural democracy).
The Compatibility of Confucianism and Law
Authority without power: law and the Japanese paradox
1. issued as an Oxford Univ. Press paperback
Pufendorf, Samuel Freiherr von: moral and political philosophy
social contract: contemporary approaches to
John Locke (1632–1704) is among the most influential politicalphilosophers of the modern period. In the Two Treatises ofGovernment, he defended the claim that men are by nature free andequal against claims that God had made all people naturally subject toa monarch. He argued that people have rights, such as the right tolife, liberty, and property, that have a foundation independent of thelaws of any particular society. Locke used the claim that men arenaturally free and equal as part of the justification forunderstanding legitimate political government as the result of asocial contract where people in the state of nature conditionallytransfer some of their rights to the government in order to betterensure the stable, comfortable enjoyment of their lives, liberty, andproperty. Since governments exist by the consent of the people inorder to protect the rights of the people and promote the public good,governments that fail to do so can be resisted and replaced with newgovernments. Locke is thus also important for his defense of the rightof revolution. Locke also defends the principle of majority rule andthe separation of legislative and executive powers. In the LetterConcerning Toleration, Locke denied that coercion should be usedto bring people to (what the ruler believes is) the true religion andalso denied that churches should have any coercive power over theirmembers. Locke elaborated on these themes in his later politicalwritings, such as the Second Letter on Toleration andThird Letter on Toleration.