Search Results

1 - 10 of 70 items :

  • "Legal Theory" x
Clear All
Posner’s Folly: The End of Legal Pragmatism and Coercion’s Clarity

Nietzsche and Stendhal , 18 Cardozo L. Rev. 85 (1996); Sotirios A. Barber, Stanley Fish and the Future of Pragmatism in Legal Theory , 58 U. Chi. L. Rev. 1033 (1991); and John O. McGinnis & Michael B. Rappaport, A Pragmatic Defense of Originalism , 31 Harv. J. L. & Pub. Pol’y 917 (2008). Instead, from a corner of legal theory, I will sketch an approach to broadly reconceptualizing law beginning with its essentially physically-coercive nature . From a naturalistic and fundamentally Aristotelian point of view that reasons first from the characteristic effects of

Open access
Milan Kundera and Franz Kafka - How Not to Forget Everydayness

Milan Kundera and Franz Kafka - How Not to Forget Everydayness

Purpose of the article is to show that while in fundamental constitutional questions we are still attentive to our past, in everyday legal cases we can forget more likely. In my opinion, in case of the post-communist countries it is very dangerous to forget the Past because we have nothing other than our memories. To forget means either to be exposited the danger of return to the system as it was or to transform our legal praxis into a depersonalized system.

Methodology/Methods In this article I want to analyze two decisions of Constitutional Court of the Czech Republic and compare them with situation described in early works of Milan Kundera (The Joke; The Book of Laughter and Forgetting). His work reflecting the past everydayness in communist Czechoslovakia can be used as a good example of the analyses of forgetting. Very similar inspirations we can find in work of Franz Kafka (The Trial) or even better in Milan Kundera's interpretation of Kafka's work. The scientific aim of this article is to show that although the literature represents different conception of knowledge when this knowledge is compared with legal knowledge we can gain parallels that describe the law rooted in culture and society.

Conclusions of this article show that on one side we face reminding of our Past in decisions regarding politically considerable cases. On the other side we face the oblivion: In cases at constitutional level dealing with everydayness in legal praxis we can find rather shift to formal interpretation without any reference to our past. The result can be Kafkaesque legal system without any signs of living people.

Open access
Bad Company: The Corporate Appropriation of Nature, Divinity, and Personhood in U.S. Culture

Abstract

In this article, I provide a cultural history of some of the critical predicates of corporate personhood. I track the Hobbesian lineage of the corporate form, but also the ways the corporation, ascribed with numinous agency and personhood, has filled the cultural space vacated by our transcendence of anthropomorphic notions of god and Nature.

The corporation was created through the consent of the sovereign, and its charter was formulated to reflect not only its uses, but its potential threat, particularly with regard to its concentration of power. Established under the aegis of individual states, the U.S. corporation was initially restricted to specific functions for limited periods. But corporations in many contexts not only have supplanted the Hobbesian state that created them, but displaced the individual person.

Corporations have become super-persons and forms of sovereigns themselves, in part by acquiring human rights and “personalities” and tethering them to the corporation’s inhuman attributes. However, corporations don’t just mimic human behaviors; at best simulacra, or imitations of human life, corporations challenge and destabilize the status of personhood, and what it means to be a person.

In the process, corporations have amassed not just wealth, but personhood (for example, in perhaps surprising ways, the personhood of African Americans). In many ways, the ever-increasing wealth gap in the United States is actually a personhood gap. The overarching effect of corporate personhood, which operates in tandem with privatization, is to dehumanize people, turning them into things that have no rights. Created to encourage entrepreneurial (or reckless and socially irresponsible) risk-taking and minimize personal liability, the corporation evolved into an entity that dynamically diminishes the personal.

The corporation represents a collective, transcendental body that has taken on the role of a deity, and, in U.S. ontology, of nature. The relationships between human and corporate personhood and identity implicate fantasies of the supernal; the superhuman; immortality; and the transcendence of individuality. For these reasons, I treat the corporation not primarily as a commercial enterprise, but as a cultural phantasm, a kind of black hole that draws in more and more cultural phenomena into its orbit. The modern corporation has come to guarantee certain rights at a price, in much the way the Hobbesian state once did. People barter their attributes to corporations; but they are no longer trading liberty for security, but “souls” for identity. As the corporation comes to serve as the de facto guarantor and distributor of culture, it remains amoral at best, and in practice serves as a dominant pathological personality that helps reduce all human endeavor to commercial interest.

Open access
Leon Petrażycki on Norms and Their Logical Study

теорией нравственности. В 2х тт. СПб, 1907 (2000). 7. Petrażycki, L. Essays in legal philosophy. St Petersburg, 1900-1903. In E. V. Timoshina (ed.), Petrażycki L. Legal theory and politics. St Petersburg, 2010, pp. 245-379. (In Russian) Петражицкий Л.И. Очерки философии права. В: Тимошина Е.В. (ред.) Петражицкий Л.И. Теория и политика права. СПб, 2010. 8. Hohfeld, W. N. ‘Some Fundamental Legal Conceptions as Applied in Legal Reasoning’. Yale Law Journal 16, 1913 (1946). 9. Lisanyuk, E. W. Hohfeld and L. Petrażycki on norms

Open access
The Subjects of Public International Law in a Globalized World

Analysis of International Law and Legal Theory." Melbourne University Law Review 19 (1993-1994): 893 et seq. Johnson, Debra, and Colin Turner. International Business . 1 st ed. London: Routledge, 2003. Kleger, Heinz, Ireneusz Pawel Karolewski, and Matthias Munkel. Europäische Verfassung: Zum Stand der europäischen Demokratie im Zuge der Osterweiterung [European Constitution: on the Current Status of European Democracy in the Context of the Eastern Enlargement] . 3 rd ed. Münster: Lit Verlag, 2004

Open access
Philosophical and Linguistic Sources of Herbert L. A. Hart’s Theory of Law

Abstract

The paper presents H. L. A. Hart as a leading exponent of the analytic orientation in legal philosophy. Hart showed that the principles and methods of analytic philosophy yield fruitful implications to law, where they may foster fresh ideas and innovative solutions. The text emphasizes the linguistic aspect of Hart’s works; his achievements in legal theory are discussed in the context of the principles of ordinary language philosophy.

Open access
Public Participation and Democratic Legitimacy of Rulemaking – A Comparative Analysis

Abstract

In recent years, public participation has been a frequent object of research, especially in relation to rulemaking procedures. The aim of the paper is to verify a common thesis, that public participation is a means for enhancing democratic legitimacy in rulemaking. In order to do so, the author defines legitimacy and legitimation, presents models of the democratic legitimacy of the executive and compares monistic and pluralistic understanding of democracy. The author then analyzes standpoints of American, English and German legal theory and case law and proposes a possible solution to the main research question.

Open access
What is Offered to the Modern Science by Leon Petrażycki? (Following Three Descriptions of Legal Principles)

Abstract

The aim of this paper is to outline the general oversight of the concept of law in Leon Petrażycki’s legal theory. On the example of the principles of law, an attempt was made to answer the question, what Petrażycki’s theory proposes to modern science. In the first part of the presentation, the Author presented the current state of theoretical knowledge in the field of principles of law. The attention was paid to the problem of various characteristics of legal principles. In further considerations, an attempt was made to answer the question about adoption of models proposed by Petrażycki in the contemporary theoretical discourse. The summary presents general conclusions of the paper.

Open access
Barak’s Purposive Interpretation in Law as a Pattern of Constitutional Interpretative Fidelity

Abstract

Political jurisprudence points out that constitutional court judges sometimes act like political actors, and that their decisions are a function of strategic and ideological as much as legal considerations. Consequently, the proper role of the courts, notably in exercising their review of constitutionality, has been one of the most debated issues in modern political and legal theory. Part of the controversy is also how to measure the interpretative fidelity of judges to the constitutional texts, or conversely, the level of their political engagement. This paper argues for the reconsideration of Aharon Barak’s Purposive Interpretation in Law in that light. Barak’s work was intended to provide, in the first place, judges and other lawyers with a sort of judicial philosophy – a holistic system of legal reasoning, applying both to the interpretation of will, contract, statute and constitution. Nevertheless, these conventions of legal reasoning, modified and readapted, could well be used also as heuristic tools by the academics in measuring the interpretative fidelity of judges to various sources of law. Accordingly, this paper clings closely to the presentation of Barak’s precepts for the purposive interpretation of constitutions, by focusing on the notions of subjective and objective purpose in interpreting constitutions, and how the potential conflicts between these purposes are resolved.

Open access
Legal Aspects of Electronic Communication and Its Proof According to the Tax and Social Insurance Procedure Code Regulations

Abstract

The entry into force of new laws governing electronic communications pose new challenges to electronic communication with the judiciary authorities and arise practical issues with its proof. The following article aims to summarize the results of theoretical and practical analysis of the current legal framework on the proof of electronic communications in our country and its regulation in the Tax and Social Insurance Procedure Code. In legal theory, there is a common understanding about the document and its essence, as a means of proof and it is that the document is a thing on which with the written or electronic symbol it is a materialized statement. The electronic document is a means of proof which, by virtue of law, has the same (equal) evidentiary effect, as the written document. The evidentiary effect of the document does not depend on whether the document is written or electronic, but whether it is accompanied by the signature of its author and, above all, the capacity of the publisher compiling the document

Open access