scholarly journals Legal Realism and Functional Kinds: Michael Moore’s Metaphysically Reductionist Naturalism

2021 ◽  
pp. 83-107
Author(s):  
Torben Spaak
Keyword(s):  
Natural Kinds ◽  
Legal Reasoning ◽  
Human Behaviour ◽  
Legal Rights ◽  
Legal Realism ◽  
Natural Properties ◽  
Theory Of Law ◽  
Functional Kinds ◽  
Michael Moore

Michael Moore defends an account of scientific, mental, moral, and legal properties, according to which there are not only natural kinds, but also moral and functional kinds; and he maintains, more specifically that: 1) distinctively legal phenomena, such as legal rights, precedent, malice, etc. are functional kinds, in the sense that they have a nature that consists in the function they fulfill in law, 2) the function of a functional kind is that effect, or those effects, of the functional kind that causally contribute more than does any of its other effects to the goal of the larger system within which it occurs, and 3) functional kinds can be reduced to indefinitely large disjunctions of natural properties, 4) the relevant version of naturalism is metaphysically reductionist naturalism, and 5) functional kinds play an indispensable role in the explanation of human behaviour. I argue, however, 1) that the method for determining the function of a (purported) functional kind proposed by Moore is too indeterminate to be able to pin down the function. I also argue 2) that it turns out to be very difficult to identify the properties that are part of the indefinitely large disjunction of natural properties which, on Moore’s analysis, is identical to a functional kind, 3) that functional kinds cannot be part of the best explanation of human behaviour, because they lack nomological unity, and that they lack such unity because they are necessarily multiply realizable, and 4) that Moore will therefore have to give up: a) the view that functional kinds are identical to indefinitely large disjunctions of natural properties, b) the view that functional kinds are part of the best explanation of human behaviour, or both (a and b). I also argue 5) that the idea of a functional kind should not play a central role in any theory of law or legal reasoning.

On the Artifactual—and Natural— Character of Legal Institutions

2018 ◽  
Author(s):  
Corrado Roversi
Keyword(s):  
Natural Law ◽  
Common Ground ◽  
Legal Positivism ◽  
Legal Institutions ◽  
Human Beings ◽  
Legal Realism ◽  
Natural Law Theory ◽  
The Law ◽  
Theory Of Law

Are legal institutions artifacts? If artifacts are conceived as entities whose existence depends on human beings, then yes, legal institutions are, of course, artifacts. But an artifact theory of law makes a stronger claim, namely, that there is actually an explanatory gain to be had by investigating legal institutions as artifacts, or through the features of ordinary artifacts. This is the proposition explored in this chapter: that while this understanding of legal institutions makes it possible to find common ground between legal positivism and legal realism, it does not capture all of the insights offered by these two traditions. An artifact theory of law can therefore be necessary in explaining the law, but it will not suffice to that end. This chapter also posits that legal artifacts bear a relevant connection to certain conceptions of nature, thus vindicating one of the original insights behind natural law theory.

Visualization of Hajime Yoshino’s Logical Jurisprudence

2017 ◽  
Author(s):  
Vytautas Čyras ◽  
Friedrich Lachmayer
Keyword(s):  
Legal Reasoning ◽  
Pure Theory ◽  
Important Concept ◽  
Legal Informatics ◽  
Legal Domain ◽  
Theory Of Law ◽  
Legal Ontologies

Hajime Yoshino’s Logical Jurisprudence (LJ) is an important concept in legal informatics. Yoshino aims for a logic-based systematization in the legal domain. He focuses on legal reasoning and systematization. Inevitably, embracing law as a whole brings us to Hans Kelsen’s Pure Theory of Law. In sum, three issues are important in LJ: logic, Kelsen and legal informatics. In this paper we aim to visualize the architecture of LJ. We suggest expanding this with legal ontologies and words. The granularity of word-phrase-sentence-text is about different methods which apply to different units.

Canadian Supreme Court: Delgamuukw V. British Columbia

1998 ◽  
Vol 37 (2) ◽  
pp. 261-333
Author(s):  
Catherine Bell
Keyword(s):  
British Columbia ◽  
Legal Reasoning ◽  
Legal Rights ◽  
Aboriginal Rights ◽  
Canadian Law ◽  
Aboriginal Title ◽  
British Colonial ◽  
Potential Impact ◽  
British Colonies

Delgamuukw v. B.C. is a pivotal decision in the evolution of Canadian law on Aboriginal rights.Numerous meetings, round-tables, workshops and conferences have been held to discuss its potential impact on litigation and negotiation.1 Delgamuukw has also served as a vehicle for discussion of more fundamental issues such as the appropriateness of selecting the judicial forum to resolve Aboriginal title claims and the role of legal reasoning in furthering the process of colonization.2 Given the influence of British colonial law on the development of Aboriginal rights jurisprudence in former British colonies and the restrictions placed by evidentiary presumptions originating in English courts, Delgamuukw may also have persuasive precedential value outside of Canada. In particular, the Supreme Court's elaboration of the concept of Aboriginal rights and its discussion of the weight to be given to oral histories may influence other commonwealth courts which face the demanding task of accommodating the rights of colonized peoples within a contemporary political and legal rights regime.3

scholarly journals Hart's Methodological Positivism

Legal Theory ◽  
1998 ◽  
Vol 4 (4) ◽  
pp. 427-467 ◽  
Author(s):  
Stephen R. Perry
Keyword(s):  
General Theory ◽  
Natural Law ◽  
Legal Theory ◽  
Legal Positivism ◽  
Social Phenomenon ◽  
Modern Times ◽  
Theory Of Law ◽  
Michael Moore

To understand H.L.A. Hart's general theory of law, it is helpful to distinguish between substantive and methodological legal positivism. Substantive legal positivism is the view that there is no necessary connection between morality and the content of law. Methodological legal positivism is the view that legal theory can and should offer a normatively neutral description of a particular social phenomenon, namely law. Methodological positivism holds, we might say, not that there is no necessary connection between morality and law, but rather that there is no connection, necessary or otherwise, between morality and legal theory. The respective claims of substantive and methodological positivism are, at least on the surface, logically independent. Hobbes and Bentham employed normative methodologies to defend versions of substantive positivism, and in modern times Michael Moore has developed what can be regarded as a variant of methodological positivism to defend a theory of natural law.

The Pros and Cons of Legal Automation and its Governance

2016 ◽  
Vol 7 (2) ◽  
pp. 323-334 ◽  
Author(s):  
Ugo Pagallo ◽  
Massimo Durante
Keyword(s):  
Rule Of Law ◽  
Legal Reasoning ◽  
Public Deliberation ◽  
Human Behaviour ◽  
Artificial Agents ◽  
The Rule Of Law ◽  
Pros And Cons ◽  
The Law ◽  
Legal Constraints

The article examines the field of legal automation, its advantages and drawbacks, the ways in which legal constraints and safeguards can be embedded into technology and how the law may govern human behaviour through codes, IT architectures, and design. By stressing both benefits and shortcomings of legal automation, the article does not suggest that the latter is something “neutral”. Rather, making legal reasoning and enforcement automatic, so that even a machine can process and understand this information, should be conceived as a set of constraints and affordances that transform, or reshape, the environment of people’s interaction and moreover, the interplay of human and artificial agents, thereby affecting basic pillars of the (rule of) law. The overall aim is to flesh out goals and values that are at stake with choices of technological dependence, delegation and trust, so as to determine the good mix between legal automation and public deliberation.

Carl Schmitt and International Law

2015 ◽  
Author(s):  
Martti Koskenniemi
Keyword(s):  
International Law ◽  
Doctoral Dissertation ◽  
League Of Nations ◽  
Carl Schmitt ◽  
Legal Realism ◽  
Treaty Of Versailles ◽  
History Of ◽  
History Of International Law ◽  
Theory Of Law ◽  
Concept Of Law

Carl Schmitt always presented himself and was above all a jurist. His doctoral dissertation was based on an antiformal theory of law that was also in evidence in his acerbic critics of the League of Nations and the system of control over Germany established in the Treaty of Versailles. This chapter shows that the concrete-order thinking of his later years espoused a more conventional legal realism that has always constituted an important stream of international jurisprudence. Schmitt’s main postwar work, Nomos der Erde, puts forward an influential view of the history of international law as inextricably entangled with the imperial pretensions. This chapter argues that the much-cited book, together with Schmitt’s polemical concept of law and his critiques of the discriminatory concept of war, has proven a fruitful basis for much of today’s postcolonial jurisprudence.

,,SPECIAL USE OF WEAPON” FROM THE ACT ON ANTI-TERRORIST ACTIVITIES – DOGMATIC AND THEORETICAL ANALYSIS

2021 ◽  
Vol 2 (XXI) ◽  
pp. 131-140
Author(s):  
Borys Kadyszewski
Keyword(s):  
Theoretical Analysis ◽  
Criminal Law ◽  
The State ◽  
Point Of View ◽  
Legal Rights ◽  
Public Officials ◽  
State Apparatus ◽  
Maximum Protection ◽  
Theory Of Law ◽  
Terrorist Event

The article is an analysis from the theoretical and dogmatic point of view of the institution of “special use of weapons”. The intention of the legislator was to comprehensively regulate the issue of the so-called sniper shot, which is to be the reaction of the state apparatus to terrorist behavior. The direct goal of “special use of weapons” is to deprive or endanger the life of the perpetrator of a terrorist event in such a way as to ensure maximum protection of the life and health of individuals whose legal rights may potentially be threatened by terrorist activities. This study aims to present the normative shape of the discussed institution and analyze it in terms of the assumptions of the theory of law and criminal law dogmatics, and in particular, it is an attempt to answer the question about the scope of responsibility of public officials authorized to fire a sniper shot in terms of circumstances excluding unlawfulness

Legal Realism in Soviet and Russian Jurisprudence

2018 ◽  
Vol 43 (4) ◽  
pp. 483-518
Author(s):  
Mikhail Antonov
Keyword(s):  
Legal Theory ◽  
Social Philosophy ◽  
Legal Positivism ◽  
Legal Realism ◽  
Political Dimension ◽  
Political Interference ◽  
Dual Character ◽  
Ideological Background ◽  
Russian Law ◽  
Theory Of Law

Soviet law is often viewed as based on legal positivism, while its ideological background and the practices of political interference are considered in an extralegal (political) dimension. This logic prompts conclusions about the dual character of Soviet law where prerogative and normative dimensions constituted two parallel systems. Similar opinions are sometimes expressed about Russian law, which is a continuator of Soviet law both normatively and factually. The present paper analyzes this approach and suggests that the alleged dualism can be considered in the light of the basic presuppositions and methods of the Soviet (Russian) theory of law and state. This jurisprudence was and still is based on a combination of formalism and anti-formalism (realism) which provided a certain degree of unity and coherence of legal knowledge. After the end of Soviet rule, legal theory in Russia still orients itself to this symbiosis of positivism and realism which underlies legal education and legal scholarship. The paper addresses the philosophical and methodological origins of this Russian (Soviet) legal realism, and argues that the particular character of Russian (Soviet) law can be explained against the backdrop of this theoretical combination that combines conservative social philosophy, a Schmittean conception of exception, methods of legal positivism and the spirit of legal nihilism. These particularities and their methodological background are, in the author’s opinion, among the distinguishing features of Russian law and legal culture.

Toward a Postmodern Theory of Law

1998 ◽  
pp. 7-12
Author(s):  
Ana Julia Bozo de Carmona
Keyword(s):  
Twentieth Century ◽  
Legal Reasoning ◽  
Judicial Process ◽  
Postmodern Theory ◽  
Systemic Theory ◽  
Cultural Paradigm ◽  
The World ◽  
New Form ◽  
Theory Of Law ◽  
Legal Concepts

Law at the end of the twentieth century is a practice based on legal-philosophical concepts such as the representational theory of truth, neutrality, universality, and legitimacy. The content of such concepts responds to the tradition of the western cultural paradigm. We share the experience of fragmentation in this cultural unanimity: we live in a world of heterogeneousness and multiplicity that upholds the claims of different concepts of the world and of life shared by dwellers in microspaces. The theory of law should be adapted to take this experience into account. We propose a change in direction oriented toward the creation of operational legal concepts: creative justice, perspectivist rationality, a systemic theory of truth and a judicial process that guarantees the multicultural experience. Postmodernity affirms the urgent need for a new form of legal reasoning.

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