Normative pictures are in use in various fields of legal practice (e. g. urban planning, contract design, and legal communication addressed to foreigners). A background knowledge enables the understanding of this sort of pictures and affects both the morphology of the normative picture and its practical use. This paper is divided into two parts. The first part will focus on the morphology of normative pictures. The second part of the paper focuses on the different uses of normative pictures. Normative pictures with the same morphology can play very different roles because their relationship with the rules can vary.
{"title":"The Background of Normative Pictures","authors":"O. Loddo","doi":"10.25162/arsp-2020-0023","DOIUrl":"https://doi.org/10.25162/arsp-2020-0023","url":null,"abstract":"Normative pictures are in use in various fields of legal practice (e. g. urban planning, contract design, and legal communication addressed to foreigners). A background knowledge enables the understanding of this sort of pictures and affects both the morphology of the normative picture and its practical use. This paper is divided into two parts. The first part will focus on the morphology of normative pictures. The second part of the paper focuses on the different uses of normative pictures. Normative pictures with the same morphology can play very different roles because their relationship with the rules can vary.","PeriodicalId":41477,"journal":{"name":"Archiv fur Rechts- und Sozialphilosophie","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83475052","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}
Niklas Luhmann’s theory of evolution is focused on the internal complexity of a system which brings a lot of varieties of possibilities into play, although it is capable of avoiding the idea of an external causation with the consequence of adaptation to innovation. Such an assumption would not be compatible with the construction of the autopoiesis of systems. Upon the basis of this idea, disruptive processes of societal transformation are also supposed to be unable to impede the construction and preservation of useful complexity. The article develops the argument that the distinction of a centre (court decisions) and a periphery (e. g., contracts) of the legal system is no longer plausible if the transformation of legal practices is taken into consideration. The increasing importance of the periphery compels us to observe the impact of practices on evolutionary processes which have not always already been anticipated by the system.
{"title":"Was Heißt Evolution des Rechts?","authors":"H. Ladeur","doi":"10.25162/arsp-2020-0017","DOIUrl":"https://doi.org/10.25162/arsp-2020-0017","url":null,"abstract":"Niklas Luhmann’s theory of evolution is focused on the internal complexity of a system which brings a lot of varieties of possibilities into play, although it is capable of avoiding the idea of an external causation with the consequence of adaptation to innovation. Such an assumption would not be compatible with the construction of the autopoiesis of systems. Upon the basis of this idea, disruptive processes of societal transformation are also supposed to be unable to impede the construction and preservation of useful complexity. The article develops the argument that the distinction of a centre (court decisions) and a periphery (e. g., contracts) of the legal system is no longer plausible if the transformation of legal practices is taken into consideration. The increasing importance of the periphery compels us to observe the impact of practices on evolutionary processes which have not always already been anticipated by the system.","PeriodicalId":41477,"journal":{"name":"Archiv fur Rechts- und Sozialphilosophie","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80834700","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}
Forming a state is still a necessary task which is difficult from both a practical and a philosophical point of view. State building requires a return to the human world; trust must be built and responsibility must be recognizable in state action. This appears to be taken for granted in the modern age; the not self-evident only results from an open discussion about the possibility of a renewed, renewing formation of the state. Confidence in the state includes historical insights (1) and a critical discussion of the functionality of conflicts (2–3). One also needs a discussion about the fundamental possibilities that a state offers, its connection with the language of morality (4).
{"title":"Zwischen Gewalterfahrung und Vertrauen","authors":"Christian Wevelsiep","doi":"10.25162/arsp-2020-0012","DOIUrl":"https://doi.org/10.25162/arsp-2020-0012","url":null,"abstract":"Forming a state is still a necessary task which is difficult from both a practical and a philosophical point of view. State building requires a return to the human world; trust must be built and responsibility must be recognizable in state action. This appears to be taken for granted in the modern age; the not self-evident only results from an open discussion about the possibility of a renewed, renewing formation of the state. Confidence in the state includes historical insights (1) and a critical discussion of the functionality of conflicts (2–3). One also needs a discussion about the fundamental possibilities that a state offers, its connection with the language of morality (4).","PeriodicalId":41477,"journal":{"name":"Archiv fur Rechts- und Sozialphilosophie","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79467832","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}
Hegel is neither a worshiper of the war nor remains a realist who sees right-philosophically in its inescapability. This paper seeks to explain, in the light of his philosophy of history, the reasonable necessity of overcoming the war. According to Hegel, war, if inevitable, is desirable only as separate from the civic spheres and without personal hatred, but it has right-philosophically the significance of being the ethical moment in realizing the ideality of state unity. But this realization must also be based, in international relation, on the principle eligibility of the universal world spirit. This paper intends to show that the intellectual struggle for such eligibility leads to the search for an abstract, limited war without physical annihilation.
{"title":"Hegels Theorie des Krieges","authors":"Kiho Nahm","doi":"10.25162/arsp-2020-0021","DOIUrl":"https://doi.org/10.25162/arsp-2020-0021","url":null,"abstract":"Hegel is neither a worshiper of the war nor remains a realist who sees right-philosophically in its inescapability. This paper seeks to explain, in the light of his philosophy of history, the reasonable necessity of overcoming the war. According to Hegel, war, if inevitable, is desirable only as separate from the civic spheres and without personal hatred, but it has right-philosophically the significance of being the ethical moment in realizing the ideality of state unity. But this realization must also be based, in international relation, on the principle eligibility of the universal world spirit. This paper intends to show that the intellectual struggle for such eligibility leads to the search for an abstract, limited war without physical annihilation.","PeriodicalId":41477,"journal":{"name":"Archiv fur Rechts- und Sozialphilosophie","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78033934","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 will develop a new reading of the institutional pattern. According to this interpretation, legal norms exist only inside of legal institutions - on the assumption that law consists of legal institutions and that legal norms should have meaning and normative force only inside of them. At this basic idea the thesis, which this paper proposes, tries to connect Robert Alexy’s concept of normative optimization of principles to the institutional theory: legal norms as optimization of principles, which shape a legal institution.
{"title":"Institute, Unterprinzipien und Normen","authors":"Leonardo di Carlo","doi":"10.25162/arsp-2020-0020","DOIUrl":"https://doi.org/10.25162/arsp-2020-0020","url":null,"abstract":"This paper will develop a new reading of the institutional pattern. According to this interpretation, legal norms exist only inside of legal institutions - on the assumption that law consists of legal institutions and that legal norms should have meaning and normative force only inside of them. At this basic idea the thesis, which this paper proposes, tries to connect Robert Alexy’s concept of normative optimization of principles to the institutional theory: legal norms as optimization of principles, which shape a legal institution.","PeriodicalId":41477,"journal":{"name":"Archiv fur Rechts- und Sozialphilosophie","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82819719","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}
We argue that legal argumentation, as the subject matter as well as a special subfield of Argumentation Studies (AS), has to be examined by making skilled use of the full panoply of tools such as argumentation and story schemes which are at the forefront of current work in AS. In reviewing the literature, we make explicit our own methodological choices (particularly regarding the place of normative deliberation in practical reasoning) and then illustrate the implications of such an approach through the analysis of a case study in the English law of evidence. We argue that a clear distinction must be drawn between practical argumentation and stories. Because of the institutional separation between legal judgment and fact-finding in common-law jury trials, we argue for the combination of argument and story-based analysis.
{"title":"Arguments and Stories in Legal Reasoning","authors":"T. Ward, Gianluca Andresani","doi":"10.25162/ARSP-2020-0006","DOIUrl":"https://doi.org/10.25162/ARSP-2020-0006","url":null,"abstract":"We argue that legal argumentation, as the subject matter as well as a special subfield of Argumentation Studies (AS), has to be examined by making skilled use of the full panoply of tools such as argumentation and story schemes which are at the forefront of current work in AS. In reviewing the literature, we make explicit our own methodological choices (particularly regarding the place of normative deliberation in practical reasoning) and then illustrate the implications of such an approach through the analysis of a case study in the English law of evidence. We argue that a clear distinction must be drawn between practical argumentation and stories. Because of the institutional separation between legal judgment and fact-finding in common-law jury trials, we argue for the combination of argument and story-based analysis.","PeriodicalId":41477,"journal":{"name":"Archiv fur Rechts- und Sozialphilosophie","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86761508","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":"Sacrificium Intellectus?","authors":"Wolfgang van den Daele","doi":"10.25162/arsp-2020-0015","DOIUrl":"https://doi.org/10.25162/arsp-2020-0015","url":null,"abstract":"","PeriodicalId":41477,"journal":{"name":"Archiv fur Rechts- und Sozialphilosophie","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90578056","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}
I propose an interpretation of the concept of legal validity as a Kantian category so that the question about the ultimate foundation for the validity of a legal order does not arise, since it makes sense to ask about the reasons for the validity of specific legal norms, but it is illegitimate to apply this concept to the totality of norms of a legal system. Thus, the basic norm is not to be conceived as the final grounding of legal validity but as the ultimate transcendental condition for the cognition of it. I also reformulate the Kelsenian concept of effectiveness in terms of the apriori condition that guarantees the existence of legal systems as the objects of study of the science of law.
{"title":"A Kantian Solution to the Problem of the Conceptual Origins of the Normativity of Law","authors":"Mario García Berger","doi":"10.25162/arsp-2020-0013","DOIUrl":"https://doi.org/10.25162/arsp-2020-0013","url":null,"abstract":"I propose an interpretation of the concept of legal validity as a Kantian category so that the question about the ultimate foundation for the validity of a legal order does not arise, since it makes sense to ask about the reasons for the validity of specific legal norms, but it is illegitimate to apply this concept to the totality of norms of a legal system. Thus, the basic norm is not to be conceived as the final grounding of legal validity but as the ultimate transcendental condition for the cognition of it. I also reformulate the Kelsenian concept of effectiveness in terms of the apriori condition that guarantees the existence of legal systems as the objects of study of the science of law.","PeriodicalId":41477,"journal":{"name":"Archiv fur Rechts- und Sozialphilosophie","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76000150","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 critically examines two formulations of the view that the crime of using child soldiers is less serious than other international crimes. The first formulation presents a sociological argument that using child soldiers is not as serious as other international crimes involving rape or murder, and the second formulation relies on deontological moral norms to argue that using child soldiers is less serious than crimes involving murder because child soldiering does not violate fundamental human values, like the right to life. After critically examining each formulation of this view, I argue that using child soldiers does violate a fundamental human value by attacking the dignity of the developing child, where dignity is understood in terms of a person’s moral agency.
{"title":"Dignity, Development, and the Gravity of Child Soldiering","authors":"Renée Nicole Souris","doi":"10.25162/arsp-2020-0022","DOIUrl":"https://doi.org/10.25162/arsp-2020-0022","url":null,"abstract":"This paper critically examines two formulations of the view that the crime of using child soldiers is less serious than other international crimes. The first formulation presents a sociological argument that using child soldiers is not as serious as other international crimes involving rape or murder, and the second formulation relies on deontological moral norms to argue that using child soldiers is less serious than crimes involving murder because child soldiering does not violate fundamental human values, like the right to life. After critically examining each formulation of this view, I argue that using child soldiers does violate a fundamental human value by attacking the dignity of the developing child, where dignity is understood in terms of a person’s moral agency.","PeriodicalId":41477,"journal":{"name":"Archiv fur Rechts- und Sozialphilosophie","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78279567","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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