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This book examines the success of Frederick Schauer's efforts to
reclaim force as a core element of a general concept of law by
approaching the issue from different legal traditions and distinct
perspectives. In discussing Schauer's main arguments, it
contributes to answering the question whether force, sanctions and
coercion should (or should not) be regarded as necessary elements
of the concept of law, and whether legal philosophy should be
concerned at all (or exclusively) with necessary or essential
properties. While it was long assumed that legal norms are
essentially defined by their force, it was H.L.A. Hart who raised
doubts about whether law and coercion are necessarily connected,
referring to the empowering, or more generally enabling, character
exhibited by some legal norms. Prominent scholars following and
refining Hart's argument built an influential case for excluding
force as a necessary element of the concept of law. Most recently,
however, Frederick Schauer has made a strong case to reaffirm the
force of law, shedding new light on this essential question. This
book collects important commentaries, never before published, by
prominent legal philosophers evaluating Schauer's substantive
arguments and his claims about jurisprudential methodology.
This book examines the success of Frederick Schauer's efforts to
reclaim force as a core element of a general concept of law by
approaching the issue from different legal traditions and distinct
perspectives. In discussing Schauer's main arguments, it
contributes to answering the question whether force, sanctions and
coercion should (or should not) be regarded as necessary elements
of the concept of law, and whether legal philosophy should be
concerned at all (or exclusively) with necessary or essential
properties. While it was long assumed that legal norms are
essentially defined by their force, it was H.L.A. Hart who raised
doubts about whether law and coercion are necessarily connected,
referring to the empowering, or more generally enabling, character
exhibited by some legal norms. Prominent scholars following and
refining Hart's argument built an influential case for excluding
force as a necessary element of the concept of law. Most recently,
however, Frederick Schauer has made a strong case to reaffirm the
force of law, shedding new light on this essential question. This
book collects important commentaries, never before published, by
prominent legal philosophers evaluating Schauer's substantive
arguments and his claims about jurisprudential methodology.
This book offers an in-depth analysis of the differences between
common law and civil law systems from various theoretical
perspectives. Written by a global network of experts, it explores
the topic against the background of a variety of legal
traditions.Common law and civil law are typically presented as
antagonistic players on a field claimed by diverse legal systems:
the former being based on precedent set by judges in deciding cases
before them; the latter being founded on a set of rules intended to
govern the decisions of those applying them. Perceived in this
manner, common law and civil law differ in terms of the (main)
source(s) of law; who is to create them; who is (merely) to draw
from them; and whether the law itself is pure each step of the way,
or whether the law's purity may be tarnished when confronted with a
set of contingent facts. These differences have deep roots in
(legal) history - roots that allow us to trace them back to
distinct traditions. Nevertheless, it is questionable whether the
divide thus depicted is as great as it may seem: international and
supranational legal systems unconcerned by national peculiarities
appear to level the playing field. A normative understanding of
constitutions seems to grant ever-greater authority to High Court
decisions based on thinly worded maxims in countries that adhere to
the civil law tradition. The challenges contemporary regulation
faces call for ever-more detailed statutes governing the decisions
of judges in the common law tradition. These and similar
observations demand a structural reassessment of the role of
judges, the power of precedent, the limits of legislation and other
features often thought to be so different in common and civil law
systems. The book addresses this reassessment.
This book offers an in-depth analysis of the differences between
common law and civil law systems from various theoretical
perspectives. Written by a global network of experts, it explores
the topic against the background of a variety of legal
traditions.Common law and civil law are typically presented as
antagonistic players on a field claimed by diverse legal systems:
the former being based on precedent set by judges in deciding cases
before them; the latter being founded on a set of rules intended to
govern the decisions of those applying them. Perceived in this
manner, common law and civil law differ in terms of the (main)
source(s) of law; who is to create them; who is (merely) to draw
from them; and whether the law itself is pure each step of the way,
or whether the law's purity may be tarnished when confronted with a
set of contingent facts. These differences have deep roots in
(legal) history - roots that allow us to trace them back to
distinct traditions. Nevertheless, it is questionable whether the
divide thus depicted is as great as it may seem: international and
supranational legal systems unconcerned by national peculiarities
appear to level the playing field. A normative understanding of
constitutions seems to grant ever-greater authority to High Court
decisions based on thinly worded maxims in countries that adhere to
the civil law tradition. The challenges contemporary regulation
faces call for ever-more detailed statutes governing the decisions
of judges in the common law tradition. These and similar
observations demand a structural reassessment of the role of
judges, the power of precedent, the limits of legislation and other
features often thought to be so different in common and civil law
systems. The book addresses this reassessment.
This book explores the interrelation of facts and norms. How does
law originate in the first place? What lies at the roots of this
phenomenon? How is it preserved? And how does it come to an end?
Questions like these led Georg Jellinek to speak of the "normative
force of the factual" in the early 20th century, emphasizing the
human tendency to infer rules from recurring events, and to
perceive a certain practice not only as a fact but as a norm; a
norm which not only allows us to distinguish regularity from
irregularity, but at the same time, to treat deviances as
transgressions. Today, Jellinek's concept still provides
astonishing insights on the dichotomy of "is" and "ought to be",
the emergence of the normative, the efficacy and the defeasibility
of (legal) norms, and the distinct character of what legal
theorists refer to as "normativity". It leads us back to early
legal history, it connects anthropology and legal theory, and it
demonstrates the interdependence of law and the social sciences. In
short: it invites us to fundamentally reassess the interrelation of
facts and norms from various perspectives. The contributing authors
to this volume have accepted that invitation.
Constitutionalism is in crisis. And the crisis unfolds not only on
a national or a regional level. It is a global phenomenon:
Democracy is no longer on the rise, the Rule of Law appears
weakened, political cohesion seems to erode. Human Rights
Protection finds itself questioned, International Criminal Law
struggles for broad recognition, international trade may have lost
some of its appeal. Institutional actors find their authority
questioned, established political parties are threatened by
ever-changing popular movements. But where to does the charted road
lead? How will the "Crisis of Constitutionalism" unfold in the
years to come? Nobody knows, of course. But at the same time:
Nobody is too keen to make an educated guess either. This volume
remedies that. By giving nine eminent scholars in law and political
science the opportunity to make their predictions, where the
constitutionalist project will stand ten years from now, it creates
a forum of deliberation that will not only aim at anticipating the
developments in question but at the same time shape academic
discourse on constitutionalism alongside it.
The third volume of the Vienna Lectures on Legal Philosophy series
focuses on one of the most fiercely contested issues in
contemporary legal philosophy: the question of the importance of
legal reasoning and how to properly engage with it. This book
considers legal reasoning from two different angles: it revolves,
on the one hand, around debates concerning interpretation and
balancing, but it also asks, on the other, whom we ought to entrust
with decision-making based on legal reasoning and how this relates
to the very concept of law. The book approaches these underlying
problems from a variety of perspectives and against the backdrop of
different academic traditions, showcasing the rich landscape of
critical debates around contemporary legal reasoning.
This second volume of the Vienna Lectures on Legal Philosophy
series presents 11 chapters which are dedicated to normativist and
anti-normativist approaches to law. The book focuses on the
question: What is law? Is it a set of obligations imposed on courts
and officials to guide their conduct and to assess the conduct of
others? Or is it the result of settlements reached by opposing
sides that accept arrangements and understandings to sustain
peaceful cooperation? If law is the former its significance and
meaning are independent of a shifting constellation of forces; if
it is not, then what the law says depends on the relative power and
prestige of the actors involved. With contributions from some of
the leading scholars in the field, the collection presents a
balanced and nuanced assessment of what is perhaps the most
controversial debate in contemporary legal philosophy today.
The first volume of the Vienna Lectures on Legal Philosophy
illustrates the remarkable scope of contemporary legal philosophy.
It introduces methodological questions rooted in national academic
discourses, discusses the origin of legal systems, and contrasts
constitutionalist and monist approaches to the rule of law with the
institutionalist approach most prominently and vigorously defended
by Carl Schmitt. The issue at the core of these topics is which of
these perspectives is more plausible in an age defined both by a
'postnational constellation' and the re-emergence of nationalist
tendencies; an age in which the law increasingly cancels out
borders only to see new frontiers erected.
Constitutionalism is in crisis. And the crisis unfolds not only on
a national or a regional level. It is a global phenomenon:
Democracy is no longer on the rise, the Rule of Law appears
weakened, political cohesion seems to erode. Human Rights
Protection finds itself questioned, International Criminal Law
struggles for broad recognition, international trade may have lost
some of its appeal. Institutional actors find their authority
questioned, established political parties are threatened by
ever-changing popular movements. But where to does the charted road
lead? How will the “Crisis of Constitutionalism” unfold in the
years to come? Nobody knows, of course. But at the same time:
Nobody is too keen to make an educated guess either. This volume
remedies that. By giving nine eminent scholars in law and political
science the opportunity to make their predictions, where the
constitutionalist project will stand ten years from now, it creates
a forum of deliberation that will not only aim at anticipating the
developments in question but at the same time shape academic
discourse on constitutionalism alongside it.
The first volume of the Vienna Lectures on Legal Philosophy
illustrates the remarkable scope of contemporary legal philosophy.
It introduces methodological questions rooted in national academic
discourses, discusses the origin of legal systems, and contrasts
constitutionalist and monist approaches to the rule of law with the
institutionalist approach most prominently and vigorously defended
by Carl Schmitt. The issue at the core of these topics is which of
these perspectives is more plausible in an age defined both by a
'postnational constellation' and the re-emergence of nationalist
tendencies; an age in which the law increasingly cancels out
borders only to see new frontiers erected.
This second volume of the Vienna Lectures on Legal Philosophy
series presents 11 chapters which are dedicated to normativist and
anti-normativist approaches to law. The book focuses on the
question: What is law? Is it a set of obligations imposed on courts
and officials to guide their conduct and to assess the conduct of
others? Or is it the result of settlements reached by opposing
sides that accept arrangements and understandings to sustain
peaceful cooperation? If law is the former its significance and
meaning are independent of a shifting constellation of forces; if
it is not, then what the law says depends on the relative power and
prestige of the actors involved. With contributions from some of
the leading scholars in the field, the collection presents a
balanced and nuanced assessment of what is perhaps the most
controversial debate in contemporary legal philosophy today.
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