This work has two aims. Its first aim is to reject the widespread thesis that the legal normative systems determining the powers of public authorities are closed because they contain a rule stating that constituted authorities cannot execute normative acts if they have not been expressly authorised to do so. In other words, this rule states that any person whose normative status is not liable to the powers of a constituted authority by the constituent authority enjoys immunity from said authority. The second aim of the paper is to defend the (alternative) thesis according to which these systems are closed because they contain a residual closure rule that says that any person whose normative status has not been explicitly exempted from the competence of a constituted authority by an immunity established by the constituent authority is liable to its constituted authority. In pursuing these two goals, the author uses analytic tools developed to show that systems of regulative legal norms are closed if they contain a residual closure rule that says that anything that is not prohibited is permitted.
{"title":"The closure of the systems of legal norms of competence","authors":"María Beatriz Arriagada Cáceres","doi":"10.4000/revus.7374","DOIUrl":"https://doi.org/10.4000/revus.7374","url":null,"abstract":"This work has two aims. Its first aim is to reject the widespread thesis that the legal normative systems determining the powers of public authorities are closed because they contain a rule stating that constituted authorities cannot execute normative acts if they have not been expressly authorised to do so. In other words, this rule states that any person whose normative status is not liable to the powers of a constituted authority by the constituent authority enjoys immunity from said authority. The second aim of the paper is to defend the (alternative) thesis according to which these systems are closed because they contain a residual closure rule that says that any person whose normative status has not been explicitly exempted from the competence of a constituted authority by an immunity established by the constituent authority is liable to its constituted authority. In pursuing these two goals, the author uses analytic tools developed to show that systems of regulative legal norms are closed if they contain a residual closure rule that says that anything that is not prohibited is permitted.","PeriodicalId":38165,"journal":{"name":"Revus","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43804281","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper examines the rationalist conception of evidence as advocated by Jordi Ferrer and its proposal to formulate precise and objective standards of proof. First, three concerns are raised about the characterization of the rationalist conception as discussed in: i) its historical background, ii) its defining features, and iii) the contrast between a rationalist conception that focuses exclusively on evidence and a persuasive conception that focuses on the beliefs of the trier of facts. Second, it is argued that the search for an objective and precise standard of proof should be abandoned, both because it is futile and because it contradicts the probabilistic nature of evidential reasoning. Finally, it is suggested that an adequate theory of the sufficiency of evidence should be able to accommodate and explain (a) the current formulation of standards of proof notwithstanding the problems of subjectivity and imprecision, (b) a rigorous analysis of evidence that includes both an individual and an overall evaluation of evidence, and (c) the beliefs of the trier of facts. I argue that a theory of evidence should integrate evidence and persuasion as two basic components of evidential reasoning.
{"title":"The search for El Dorado","authors":"Ray Gama","doi":"10.4000/revus.7353","DOIUrl":"https://doi.org/10.4000/revus.7353","url":null,"abstract":"This paper examines the rationalist conception of evidence as advocated by Jordi Ferrer and its proposal to formulate precise and objective standards of proof. First, three concerns are raised about the characterization of the rationalist conception as discussed in: i) its historical background, ii) its defining features, and iii) the contrast between a rationalist conception that focuses exclusively on evidence and a persuasive conception that focuses on the beliefs of the trier of facts. Second, it is argued that the search for an objective and precise standard of proof should be abandoned, both because it is futile and because it contradicts the probabilistic nature of evidential reasoning. Finally, it is suggested that an adequate theory of the sufficiency of evidence should be able to accommodate and explain (a) the current formulation of standards of proof notwithstanding the problems of subjectivity and imprecision, (b) a rigorous analysis of evidence that includes both an individual and an overall evaluation of evidence, and (c) the beliefs of the trier of facts. I argue that a theory of evidence should integrate evidence and persuasion as two basic components of evidential reasoning.","PeriodicalId":38165,"journal":{"name":"Revus","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46162992","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article addresses Chapter 4 of Visa A. J. Kurki’s latest book A Theory of Legal Personhood, in which the author discusses constraints on the concept of legal personhood and concludes that not anything can be a legal person. Kurki suggests that those who claim otherwise often conflate two separate notionsof “legal person”. The first part of this article reframes the problem by locating it within an essentialist framework. Parts two and three reinterpret Kurki’s theory in relation to this framework and apply Khalidi’s theory of social kinds to Kurki’s understanding of legal personhood. Finally, part four shows that the consequence of Kurki’s theory is that not only his legal persons but also his legal platforms are eventually grounded in non-social features. Since this consequence is suspicious for a legal positivist, this article concludes by suggesting an alternative approach, in which constraints on legal personhood are of a pragmatic rather than a conceptual or metaphysical nature.
{"title":"Why cannot anything be a legal person?","authors":"P. Banás","doi":"10.4000/revus.7335","DOIUrl":"https://doi.org/10.4000/revus.7335","url":null,"abstract":"This article addresses Chapter 4 of Visa A. J. Kurki’s latest book A Theory of Legal Personhood, in which the author discusses constraints on the concept of legal personhood and concludes that not anything can be a legal person. Kurki suggests that those who claim otherwise often conflate two separate notionsof “legal person”. The first part of this article reframes the problem by locating it within an essentialist framework. Parts two and three reinterpret Kurki’s theory in relation to this framework and apply Khalidi’s theory of social kinds to Kurki’s understanding of legal personhood. Finally, part four shows that the consequence of Kurki’s theory is that not only his legal persons but also his legal platforms are eventually grounded in non-social features. Since this consequence is suspicious for a legal positivist, this article concludes by suggesting an alternative approach, in which constraints on legal personhood are of a pragmatic rather than a conceptual or metaphysical nature.","PeriodicalId":38165,"journal":{"name":"Revus","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49644169","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"La clausura de los sistemas de normas de sanción penal como sistemas de reglas constitutivas","authors":"Juan Pablo Mañalich R.","doi":"10.4000/revus.7473","DOIUrl":"https://doi.org/10.4000/revus.7473","url":null,"abstract":"","PeriodicalId":38165,"journal":{"name":"Revus","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70594219","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
El presente trabajo ofrece un analisis parcial del ultimo libro de Cristina Redondo, Positivismo juridico “interno”. En particular, senalo la falta de un mayor desarrollo de la nocion de participante (de la practica juridica), para luego enfatizar que las distinciones de Redondo entre puntos de vista interno y externo, ofrecidas para modelar su metateoria positivista, son incompatibles con una reconstruccion expresivista del lenguaje juridico de primer orden. Como la cuestion de cual es la mejor reconstruccion del lenguaje juridico es teoricamente discutida, un modelo metateorico sera, en principio, preferible a otros en la medida en que no prejuzgue sobre dicha cuestion. Finalmente sugiero una estrategia alternativa que permitiria arribar a un modelo metateorico muy similar pero que no incurre en ese particular problema.
{"title":"Positivismo jurídico interno: ¿“hurra”, “buh”, “ehhh…”?","authors":"P. A. Rapetti","doi":"10.4000/revus.7375","DOIUrl":"https://doi.org/10.4000/revus.7375","url":null,"abstract":"El presente trabajo ofrece un analisis parcial del ultimo libro de Cristina Redondo, Positivismo juridico “interno”. En particular, senalo la falta de un mayor desarrollo de la nocion de participante (de la practica juridica), para luego enfatizar que las distinciones de Redondo entre puntos de vista interno y externo, ofrecidas para modelar su metateoria positivista, son incompatibles con una reconstruccion expresivista del lenguaje juridico de primer orden. Como la cuestion de cual es la mejor reconstruccion del lenguaje juridico es teoricamente discutida, un modelo metateorico sera, en principio, preferible a otros en la medida en que no prejuzgue sobre dicha cuestion. Finalmente sugiero una estrategia alternativa que permitiria arribar a un modelo metateorico muy similar pero que no incurre en ese particular problema.","PeriodicalId":38165,"journal":{"name":"Revus","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46430092","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This reply addresses the contributions of the book symposium, containing the author’s reflections, clarifications and counterarguments.
本回复涉及本书研讨会的贡献，包含作者的反思、澄清和反驳。
{"title":"On legal personhood: rejoinders, reflections and restatements","authors":"V. Kurki","doi":"10.4000/revus.7425","DOIUrl":"https://doi.org/10.4000/revus.7425","url":null,"abstract":"This reply addresses the contributions of the book symposium, containing the author’s reflections, clarifications and counterarguments.","PeriodicalId":38165,"journal":{"name":"Revus","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47364855","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The closure of systems of penal sanction norms as systems of constitutive rules","authors":"J. Mañalich R.","doi":"10.4000/revus.7439","DOIUrl":"https://doi.org/10.4000/revus.7439","url":null,"abstract":"","PeriodicalId":38165,"journal":{"name":"Revus","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43172573","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper focuses on the rationalist theory of evidence and identifies a set of two basic theses and their underlying philosophical assumptions shared by the Anglo-American and the Latin versions of rationalism: the thesis of the pursuit of truth as the preferential aim of legal evidence; the thesis of evidentiary justification as a special case of general epistemic justification; the assumption of the notion of truth as correspondence; the assumption of ontological and epistemological differentiation of rationalism from both skepticism and naive cognitivism. The author sustains that these theses and assumptions are imprecise in important aspects and that this is what allows the adoption of the rationalist conception to function as the common frame for current debates in legal theory of evidence, a frame that closes some discussions (namely, those concerning the notion of truth) and opens others (those regarding the degree of specificity of legal evidentiary justification and the appropriate way to allocate the risk of error).
{"title":"Legal evidence theory: are we all “rationalists” now?","authors":"Daniela Accatino","doi":"10.4000/revus.5692","DOIUrl":"https://doi.org/10.4000/revus.5692","url":null,"abstract":"This paper focuses on the rationalist theory of evidence and identifies a set of two basic theses and their underlying philosophical assumptions shared by the Anglo-American and the Latin versions of rationalism: the thesis of the pursuit of truth as the preferential aim of legal evidence; the thesis of evidentiary justification as a special case of general epistemic justification; the assumption of the notion of truth as correspondence; the assumption of ontological and epistemological differentiation of rationalism from both skepticism and naive cognitivism. The author sustains that these theses and assumptions are imprecise in important aspects and that this is what allows the adoption of the rationalist conception to function as the common frame for current debates in legal theory of evidence, a frame that closes some discussions (namely, those concerning the notion of truth) and opens others (those regarding the degree of specificity of legal evidentiary justification and the appropriate way to allocate the risk of error).","PeriodicalId":38165,"journal":{"name":"Revus","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42525581","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Between absolutism and efficiency","authors":"Gregory C. Keating","doi":"10.4000/revus.5393","DOIUrl":"https://doi.org/10.4000/revus.5393","url":null,"abstract":"","PeriodicalId":38165,"journal":{"name":"Revus","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-12-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42555507","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper aims to explicate the concept of property, regarded as the minimal sense of the word “property”, in ordinary as well as legal language. The main claim is that the concept of property consists in a set of one or more deontic modalities that regulate the relations between persons in connection with one or more goods. The concept of property is then distinguished from differing conceptions of property, and its relations with other legal concepts are analysed. Then, some observations on the criteria for applying the concept and on the transferability of property are presented. Finally, the utility of the knowledge of the concept of property is discussed.
{"title":"Property: A conceptual analysis","authors":"A. Zambon","doi":"10.4000/REVUS.5208","DOIUrl":"https://doi.org/10.4000/REVUS.5208","url":null,"abstract":"This paper aims to explicate the concept of property, regarded as the minimal sense of the word “property”, in ordinary as well as legal language. The main claim is that the concept of property consists in a set of one or more deontic modalities that regulate the relations between persons in connection with one or more goods. The concept of property is then distinguished from differing conceptions of property, and its relations with other legal concepts are analysed. Then, some observations on the criteria for applying the concept and on the transferability of property are presented. Finally, the utility of the knowledge of the concept of property is discussed.","PeriodicalId":38165,"journal":{"name":"Revus","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44544334","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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