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This collection of essays represents a ground-breaking
collaboration between moral philosophers, action theorists, lawyers
and legal theorists to set a fresh research agenda on agency and
responsibility in negligence. The complex phenomenon of
responsibility in negligence is analysed from multi- and
interdisciplinary perspectives, shedding light on key ethical and
legal issues related to agency and negligence to impact substantive
law and policy-making in different jurisdictions. The volume
introduces new debates and questions old assumptions, inviting the
reader to rethink substantive law and practical ethical reflection.
In the long-standing debate between positivism and non-positivism,
legal validity has always been a subject of controversy. While
positivists deny that moral values play any role in the
determination of legal validity, non-positivists affirm the
opposite thesis. In departing from this narrow point of view, the
book focuses on the notion of legal knowledge. Apart from what one
takes to constitute the grounds of legal validity, there is a more
fundamental issue about cognitive validity: how do we acquire
knowledge of whatever is assumed to constitute the elements of
legal validity? When the question is posed in this form a
fundamental shift takes place. Given that knowledge is a
philosophical concept, for anything to constitute an adequate
ground for legal validity it must satisfy the standards set by
knowledge. In exploring those standards the author argues that
knowledge is the outcome of an activity of judging, which is
constrained by reasons (reflexive). While these reasons may vary
with the domain of judging, the reflexive structure of the practice
of judging imposes certain constraints on what can constitute a
reason for judging. Amongst these constraints are found not only
general metaphysical limitations but also the fundamental principle
that one with the capacity to judge is autonomous or, in other
words, capable of determining the reasons that form the basis of
action. One sees, as soon as autonomy has been introduced into the
parameters of knowledge, that law is necessarily connected with
every other practical domain. The author shows, in the end, that
the issue of knowledge is orthogonal to questions about the
inclusion or exclusion of morality, for what really matters is
whether the putative grounds of legal validity are appropriate to
the generation of knowledge. The outcome is far more integral than
much work in current theory: neither an absolute deference to
either universal moral standards or practice-independent values nor
a complete adherence to conventionality and institutional
arrangements will do. In suggesting that the current positivism
versus non-positivism debate, when it comes to determining law's
nature, misses the crux of the matter, the book aims to provoke a
fertile new debate in legal theory. "George Pavlakos' engaging book
tackles the fundamental question of what makes legal knowledge
possible. Since all articulate thought has to conform to implicit
rules of grammar, it is necessarily normatively structured. Thus
normativity cannot be something external to human thinking that we
study from the outside, but is intrinsic to all human practices
(including the natural sciences). This insight opens up fascinating
new lines of inquiry into the character of law and its relations to
other normative domains." Professor Sir Neil MacCormick, Edinburgh
University "With admirable analytical acumen, George Pavlakos
underscores the practical character of legal knowledge as well as
the importance of argumentation in legal theory. He rejects those
approaches to the nature of law that rest on conventional criteria
as well as those that turn on factors altogether independent of
practice, developing instead the thesis that objectivity and
knowledge emerge from practical activity reflecting the spontaneity
of human reason. In light of this notion of legal cognition as a
practical activity directed and constrained by reason, the law is
seen as an enduring institution, jurisprudence as a humanistic
discipline. A truly important work." Professor Dr. Robert Alexy,
Christian-Albrechts-Universitat zu Kiel
This collection of essays represents a ground-breaking
collaboration between moral philosophers, action theorists, lawyers
and legal theorists to set a fresh research agenda on agency and
responsibility in negligence. The complex phenomenon of
responsibility in negligence is analysed from multi- and
interdisciplinary perspectives, shedding light on key ethical and
legal issues related to agency and negligence to impact substantive
law and policy-making in different jurisdictions. The volume
introduces new debates and questions old assumptions, inviting the
reader to rethink substantive law and practical ethical reflection.
This collection of new essays explores in depth how and why we act
when we follow practical standards, particularly in connection with
the authority of legal texts and lawmakers. The essays focus on the
interplay of intentions and practical reasons, engaging incisive
arguments to demonstrate both the close connection between them,
and the inadequacy of accounts that downplay this important link.
Their wide-ranging discussion includes topics such as legal
interpretation, the paradox of intention, the relation between
moral and legal obligation, and legal realism. The volume will
appeal to scholars and students of legal philosophy, moral
philosophy, law, social science, cognitive psychology, and
philosophy of action.
This collection of new essays explores in depth how and why we act
when we follow practical standards, particularly in connection with
the authority of legal texts and lawmakers. The essays focus on the
interplay of intentions and practical reasons, engaging incisive
arguments to demonstrate both the close connection between them,
and the inadequacy of accounts that downplay this important link.
Their wide-ranging discussion includes topics such as legal
interpretation, the paradox of intention, the relation between
moral and legal obligation, and legal realism. The volume will
appeal to scholars and students of legal philosophy, moral
philosophy, law, social science, cognitive psychology, and
philosophy of action.
H.L.A. Hart once argued that a theory suppressing the normative
component of law "fails to mark and explain the crucial distinction
between mere regularities of human behavior and rule-governed
behavior." This is a serious drawback for a theory of law, since an
important part of the legal domain is concerned with rule-governed
conduct and may be expressed only by use of such notions as norm,
obligation, duty, and right. These notions require us to
acknowledge the existence of a normative dimension in the legal
domain. This collection of essays contributes to the study of
normativity in law by staging a thorough discussion of the notion,
approached from three directions: the theory of planning agency,
legal conventionalism, and the constitutivist approach. Though not
offering an exhaustive picture of the current debate on the
normativity of law, the book is meant rather to provide the reader
with some authoritative statements of some widely-discussed
families of views of legal normativity. Thus, the volume encourages
a dialogue between different traditions of study and stimulates
those who would not otherwise look outside their tradition of
thought to engage with new ideas. The underlying idea of the
collection is that no general theory of normativity can be put
forward unless it addresses distinct - albeit interrelated -
disciplines, such as the philosophy of mind, metaphysics, theory of
action, meta-ethics, social philosophy, political theory, ethical
theory, and jurisprudence. (Series: Law and Practical Reason)
The discussion of group rights, while always a part of the human
rights discourse, has been gaining importance in the past decade.
This discussion, which remains fundamental to a full realisation by
the international community of its international human rights
goals, requires careful analysis and empirical research. The
present volume offers a great deal of material for both. It makes a
strong case in favour of a multidisciplinary approach to human
rights and explores the origins and social, anthropological and
legal/political dimensions of human rights and internationally
recognised group rights. It explores legal issues such as the
reservations to international treaties and methodological
questions, including the question of deliberative processes which
allow seemingly absolute requirements of human rights to be
reconciled with culturally sensitive norms prevailing within
various groups. The discussion continues by looking at specific
contexts, including the situations of women, school communities,
ethnic and linguistic minorities, migrant communities and
impoverished groups. The final part of the volume examines the
'state of play' of human rights and group rights in international
law, in international relations and in the context of
internationally sponsored development policies. Here the authors
offer a meticulous and critical presentation of the legal
regulation of human rights and group rights and point to numerous
weaknesses which continue to exist and which call for additional
work by legal thinkers and practitioners.
A philosophical system is not what one would expect to find in the
work of a contemporary legal thinker. Robert Alexy's work counts as
a striking exception. Over the past 28 years Alexy has been
developing, with remarkable clarity and consistency, a systematic
philosophy covering most of the key areas of legal philosophy.
Kantian in its inspiration, his work admirably combines the rigour
of analytical philosophy with a repertoire of humanitarian ideals
reflecting the tradition of the Geisteswissenschaften, rendering it
one of the most far-reaching and influential legal philosophies in
our time. This volume has been designed with two foci in mind: the
first is to reflect the breadth of Alexy's philosophical system, as
well as the varieties of jurisprudential and philosophical
scholarship in the last three decades on which his work has had an
impact. The second objective is to provide for a critical exchange
between Alexy and a number of specialists in the field, with an eye
to identifying new areas of inquiry and offering a new impetus to
the discourse theory of law. To that extent, it was thought that a
critical exchange such as the one undertaken here would most
appropriately reflect the discursive and critical character of
Robert Alexy's work. The volume is divided into four parts, each
dealing with a key area of Alexy's contribution. A final section
brings together concise answers by Robert Alexy. In composing
these, Alexy has tried to focus on points and criticisms that
address new aspects of discourse theory or otherwise point the way
to future developments and applications. With its range of topics
of coverage, the number of specialists it engages and the
originality of the answers it provides, this collection will become
a standard work of reference for anyone working in legal theory in
general and the discourse theory of law in particular.
Modern jurisprudence embodies two distinct traditions of thought
about the nature of law. The first adopts a scientific approach
which assumes that all legal phenomena possess universal
characteristics that may be used in the analysis of any type of
legal system. The main task of the legal philosopher is to disclose
and understand such characteristics,which are thought to be capable
of establishment independently of any moral or political values
which the law might promote, and of any other context-dependent
features of legal systems. Another form of jurisprudential
reflection views the law as a complex form of moral arrangement
which can only be analysed from within a system of reflective moral
and political practices. Rather than conducting a search for
neutral standpoints or criteria, this second form of theorising
suggests that we uncover the nature and purpose of the law by
reflecting on the dynamic properties of legal practice. Can legal
philosophy aspire to scientific values of reasoning and truth? Is
the idea of neutral standpoints an illusion? Should legal
theorising be limited to the analysis of particular practices? Are
the scientific and juristic approaches in the end as rigidly
distinct from one another as some have claimed? In a series of
important new essays the authors of Jurisprudence or Legal Science?
attempt to answer these and other questions about the nature of
jurisprudential thinking, whilst emphasising the connection of such
'methodological' concerns to the substantive legal issues which
have traditionally defined the core of jurisprudential speculation.
The list of contributors includes R. Alexy, S. Coyle, J. Gorman, C.
Heidemann, P. Leith, J. Morison, G. Pavlakos and V.
Rodriguez-Blanco.
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