The Philosophy of Scandinavian Legal Realism

Abstract.  The jurisprudential movement known as Scandinavian Legal Realism was founded by the Swedish philosopher Axel Hägerström and the Danish philosopher and jurist Alf Ross in order to destroy the distorting influence of metaphysics upon legal thinking and to provide the secure philosophical foundation for scientific knowledge of the law. I shall present Hägerström's philosophical theory and argue that he is committed to the metaphysical view that the world in time and space consists of causal regularities between things and events devoid of any values that is related to his epistemological view that what there is can be known by experience. Hägerström's philosophy advances a naturalistic approach that conceives the positive law as a system of rules in terms of behavioural regularities among human beings and legal knowledge as an empirical inquiry into the causal relations between legal rules and human behaviour. This approach is followed by his pupils, the Swedish lawyers A. V. Lundstedt and Karl Olivecrona, whereas Ross appeals to logical positivism. The naturalistic approach should be taken seriously since it leaves no room for the normativity of the law and for legal knowledge in terms of reasons for belief and action.     

通信权的宪法释义与审查框架--兼与杜强强、王锴、秦小建教授商榷

在"法院调取通话记录""交警查手机"等实践争议引导下,学者们借助基本权利限制的"保护范围—限制—限制的合宪性论证"的审查框架,推进了通信权的宪法释义。但将通话记录排除出通信权的保护范围,并不能有效解决实践难题,且因为过早窄化保护范围而会影响基本权利的保护效果。诉诸隐私权或者个人信息权的方案亦难以成立。应认识到《宪法》第40条存在因制宪者预见不足而产生的宪法漏洞。如果将"检查通信"理解为"示例性规定",则《宪法》第40条容有对通信权限制的其他可能性。在"通信内容"和"非内容的通信信息"分层构造下,可以建立起既能回应生活事实和实践争议,又能落实宪法严格保护目标的教义学体系和审查框架。基本权利个论的研究,有助于反思基本权利保护范围的"宽界定"或"窄界定",以及法律保留体系的普适性等基本权利总论问题。     

Karl Olivecrona's Legal Philosophy. A Critical Appraisal*

I argue in this article (i) that Karl Olivecrona's legal philosophy, especially the critique of the view that law has binding force, the analysis of the concept and function of a legal rule, and the idea that law is a matter of organized force, is a significant contribution to twentieth century legal philosophy. I also argue (ii) that Olivecrona fails to substantiate some of his most important empirical claims, and (iii) that the distinction espoused by Olivecrona between the truth and the correctness of legal statements is problematic but not needed in Olivecrona's legal philosophy.     

Hart,Legal rules and palm tree justice

In this paper I defend a liberal theory about how legal rules can and ought to be interpreted. The theory emerges from a critical examination of H. L. A. Hart's influential views on the limited but unavoidable indeterminacy of legal rules. I begin with a brief sketch of Hart's early theory (as it is traditionally understood) offering various suggestions as to how it might usefully be modified. Next, several possible objections to my modifications are sketched and criticized. Finally, reasons are provided for supposing that the modified theory may well represent Hart's current position.     

Positive Law and Systemic Legitimacy: A Comment on Hart and Habermas*

Abstract
The author revisits H. L. A. Hart's theory of positive law and argues for a major qualification to the thesis of the separation of law and morality based on a concept of systemic legitimacy derived from the social theory of Jurgen Habermas. He argues that standards for assessing the degree of systemic legitimacy in modern legal systems can develop through reflective exercise of "critical legality," a concept coined to parallel Hart's "critical morality," and an expanded understanding of the "external" and "internal" perspectives on legal systems. Following Habermas, he argues that modern positive law must retain systemic legitimacy. After suggesting criteria for measuring systemic legitimacy, the author concludes that the concept provides a useful approach to contemporary problems of "lawless" regimes and "law's imperialism."     

The Sex Right: A Legal History of the Marital Rape Exemption

How did the American legal elite come to reject the husband's privilege to rape his wife. What is the significance of that rejection. This essay traces theories justifying the marital rape exemption from the 17th century, focusing on the period focusing World War II. The history illustrates how the postwar legal elite's limited progressivism created inconsistent arguments that left the exemption open for attack, an attack that came from within the 1970s feminist movement. Radical feminist rhetoric about sexuality, rape, and marriage pulled away the last layer of theoretical support for the exemption and denounced the sex right it left exposed underneath. Connections in the 1970s, both literal and conceptual, between radical feminists and the legal elite allowed the feminist movement to discredit the exemption within that elite. To interpret the significance of that rejection, I consider how legal language affects people's senses of self. I argue that legal words like "rape,""marriage," and "husband" validate and inform people's, specifically husbands', identities in marriage. By changing the meanings of those legal words, legal reform can eventually change human behavior.     

Some Myth about Realism

This paper discusses the place of philosophical naturalism in the philosophy of law, with special reference to Scandinavian Realism. Hägerström originated a non‐cognitivist analysis of certain fundamental legal concepts, but he also proposed an error theory. The two approaches are incompatible, but were not always clearly distinguished. Among his followers, Olivecrona and Ross gradually abandoned the latter, at least from the late 1940s. Many accounts of their views are unclear, because the presence of these two kinds of analysis, their incompatibility, and the gradual abandonment of one, has often been overlooked. A corollary of the discussion is that there are some important corrigenda in the entry “Naturalism in legal philosophy” in the Stanford Encyclopedia of Philosophy.     

人工智能时代法律推理的基本模式--基于可废止逻辑的刻画

从逻辑学的角度看,法律推理具有非单调性。人工智能时代更清晰地凸显出了与这一特性相应的可废止推理模式的必要性。可废止推理虽未必一定用可废止逻辑来刻画,但这一做法在人工智能的环境下更加合乎目的。法律推理的可废止性源于法律规则的可废止性,法律规则的逻辑形式化要求将其构成要件表征为"有待证明的要素"(P要素)与"未被驳倒的要素"(NR要素)两部分,后者的引入恰当地处理了规则与例外的关系。在此基础上,可以通过引入三类"废止者",即反驳型废止者、截断型废止者和削弱型废止者,来建构可废止法律推理的基本模型。但这同时也显现出了可废止法律推理的智能化限度,核心在于它无法进行司法裁判中必不可少的价值判断。     

环境权理论与思考

环境权理论是环境法学中争议较大的问题,从“权利生长”的视角出发,可以认为环境权是社会成员一项新生的应有权利,是基础性权利,是人类环境利益危机的产物;环境权与公民环境权是两个不同层次,环境权有待上升为法定权利———公民环境权。     

Karl Olivecrona on Judicial Law‐Making

The Scandinavian Realist Karl Olivecrona did not pay much attention to questions of legal reasoning in his many works. He did, however, argue that courts necessarily create law when deciding a case. The reason, he explained, is that judges must evaluate issues of fact or law in order to decide a case, and that evaluations are not objective. Olivecrona's line of argument is problematic, however. The problem is that Olivecrona uses the term “evaluation” in a sense that is broad enough to cover not only evaluations, including moral evaluations, but also considerations that are not evaluations at all, and therefore his claim that judges must evaluate issues of law or fact in order to decide whether a case is false.     

法律论证理论述评

法律论证理论要解决的核心问题是：如何使人确信某一法律评价或法律决策是正确的？解决这一问题的进路主要有三条：逻辑分析的进路,修辞学的进路和对话（论辩）的进路。通过从问题意识角度梳理这三条路径迄今为止的发展史,可以说：第一,他们都没能解决法律论证理论的核心问题。第二,其原因是：他们都回避了对这样的问题的解决：一个正确的法律评价或决策的实质标准是什么？如何证立？第三,德性伦理学是可能解决法律论证理论问题的新路径。     

格式条款使用人的单方变更之规范构建

长期定型化交易中,格式条款使用人对格式条款的内容作单方变更有其必要性和实践意义。我国《合同法》与《民法典合同编(草案)》未对其制度化,故有必要从原理及规范上予以解释与补充。格式条款的单方变更之正当化基础可依据格式条款使用人预先保留单方变更权内容的"变更条款",亦可基于法政策的考量。之于前者,"变更条款"应受到格式条款的一般效力规制且符合相对人的可期待性,以实现对相对人信赖的保护。之于后者,应参考情势变更原则之于司法实践的类型化适用确立"变更必要性"明确的适用范围。为使格式条款的单方变更产生拘束相对人之效力,应构建相对人的利益保护机制。实体规范上该变更应符合"相对人的一般利益"或达到"合理性"要求。程序规范上,格式条款使用人应履行通知义务及相对人享有脱离变更后合同的解约权等救济措施,从而实现相对人知情权、选择权及对等权利的保护。     

Metaphor and Imagination in James Wilson's Theory of Federal Union

"Through metaphor, the past has the capacity to imagine us, and we it." -Cynthia Ozick, in "The Moral Necessity of Metaphor"
American federalism is nothing more-und nothing less-than a metaphor.
This was how lames Wilson, the most prominent lawyer at the Philadelphia Convention, came to approach the novel problem of understanding and conveying what federalism in a modern republic should mean. The Federal Republic created in 1787 was, for Wilson, more than a mutter of ingenious political design, more than a mutter of the "new science of politics," and more than a mutter of constitutional law or constitutionalism itself-unless the Constitution were seen to "comprehend" the moral purpose and moral promise of the new nation.
To Wilson, this view of the importance of the moral content of republican federalism was entailed by the "knowledge" that he took to be the necessary foundation of the Republic. It was this knowledge of certain fundamental principles- of "moral science,'I human nature, and the nature of language, and, more generally, of "cultivation" us a political and social process that was also an end in itself-that ultimately justified "the People" us the "sublime" metaphor governing American constitutional theory.
Yet, for all Wilson's faith in figurative "comprehensiveness," his distinctive approach to securing the New Republic through a federal union of the American People seems to have proved less and less compelling to his contemporaries the more he tried to pursue it as far us his vision of a politics of cultivation directed.     

Justification as a Process of Discovery

Legal decision-making interests theoreticians in our discipline largely in terms of how a legal decision is justified. In his book, Bruce Anderson (1996) has posited a distinction between how a decision is arrived at, on one hand, and how it is justified, on the other. Anderson seems to be suggesting that legal theory should set out to continue the work of the American realists, that is, to develop legal decision-making as a process of discovery towards a solution. In my presentation, I will be looking at legal decision-making as a process of finding or discovering knowledge. What I mean by "discovery," however, is the discovery of new scientific knowledge. (The theory of science draws a distinction between proving and discovering knowledge.) I submit that for a justification to be valid the arguments comprising it ought to fulfill the logical conditions stipulated for the discovery of knowledge. In the present paper, I also hope to share with you the main ideas of a book I am currently writing on the subject.     

Linguistic Justice in International Law: An Evaluation of the Discursive Framework

Claims by minority groups to use their own languages in different social contexts are often presented as claims for “linguistic justice”, that is, justice as between speakers of different languages. This article considers how the language of international law can be used to advance such claims, by exploring how international law, as a discourse, approaches questions of language policy. This analysis reveals that international legal texts structure their engagement with “linguistic justice” around two key concepts: equality and culture. Through a close examination of the way in which these concepts function within international legal discourse, the article suggests that this conceptual framework may sometimes constrain, as well as enlarge, the possibilities for justice for minority language speakers. Thus while international law may provide a language for challenging injustices in the linguistic sphere, limitations inherent in this discourse may also restrict its emancipatory potential.     

The legal status of clinical and ethics policies, codes, and guidelines in medical practice and research

This article examines the legal status of "soft law" in the fields of medicine and medical research. Many areas of clinical practice and research involve complex and rapidly changing issues for which the law provides no guidance. Instead, guidance for physicians and researchers comes from what has often been called "soft law"--non-legislative, non-regulatory sources, such as ethics policy statements, codes, and guidelines from professional or quasi-governmental bodies. This article traces the evolution of these "soft law" instruments: how they are created, how they are adopted within the professional community, and how they become accepted by the courts. It studies the relationship between soft law instruments and the courts. It includes an examination of the approaches to judicial analysis used by the courts in theory and in practice. The authors then examine the jurisprudence to see how courts will adopt professional norms as the legal standard of care in some circumstances and not others. They consider the legal concerns and ethical issues surrounding the weight attached to professional practices and norms in law. The authors demonstrate how practices and policies that guide professional conduct may ultimately bear weight as norms recognizable and enforceable within the legal sphere.     

Hart's Jurisprodence: Its relation to Philosophy

The essay concerns the way jurisprudence adapts to the challanges set by contemporary philosophy concentarting upon the case of Hart"s legal theory. Hart produced one paradigm of linking philosphical considerations to jurisprudential analyses. He seemed to believe that the investigation of legal phenomena must itself raise and answer the underlying philosophical questions (only occasionally relying on philosophical sources). Although Hart was well aware of the rising new philosophy of his time, he sought to elaborate an autonomus conceptual framework for philosophical jurisprudence. The essay often takes Wittgenstein as an example for elucaidating Hart"s relation to philosophy (although critizing those who believe that Hart"s is a key figure in the jurisprudential reception of Wittgenstein"s later philosophy). The essayjustifies Hart"s claim to gain theoretical autonomy but points to three mistakes in that prespect. (1) He sometimes misconcieved his philodophical sources owing to the fact that he refrained from analyzing them. (2) Hart justified some of his crucial claims by a combination of arguments that is not entirely consistent. (3) His standpoint often raised philosophical issues but sometimes failed to make an identifiable point upon them. The essay concludes that Hart was right in thinking that the time had come to reconsider the conditions of making theories about law but he couild not justify his assumption that the reconsideration would lead to certain kind of comprehensive theory of law.     

论对未出生者利益的民法保护

在承认未出生者的民事权利能力的基础上,采用法定解除条件说,对于其利益的保护更为周到.未出生者权利的范围应该包括继承权、接受赠与的权利、健康权和受抚养权等.未出生者的权益受到侵害后,在其出生前,即可就其损害提起损害赔偿的请求.     

我国检察权的反思与重构——以公诉权为核心的分析

检察机关的基本职能是公诉 ,检察权在本质上主要表现为公诉权 ,以公诉权为基本内容的检察权在本质属性和终极意义上应属于行政权。检察机关在刑事诉讼中的各项权力都是具体的诉讼程序性权力 ,与所谓的法律监督机关、法律监督权并不存在必然的关联性。应该按照检察机关就是公诉机关的思路去改革司法制度 ,建立以公诉机关为核心、主导的审判前程序 ,同时改革现行的逮捕和其他侦查措施的审查批准制度。     

Testing the Precision of Legal Translation: The Case of Translating Islamic Legal Terms into English

Legal translation is viewed as “a category in its own right” (Weston in An English reader’s guide to the French legal system. Berg, Oxford, (1991, p. 2). It is a kind of translation of the language used for specific purposes (Zhao in J Transl Stud 4:28, 2000). Legal translation requires accuracy in relaying the substance of the message, while respecting the form thereof as well as the genius of the target language (Zhao in J Transl Stud 4:19, 2000; Sarcevic in New approach to legal translation. Kluwer Law International, Hague, 1997, p. 52). As generally accepted worldwide, precision is deemed of paramount importance in legal translation. With this in mind, the present paper deals chiefly with the concept of how legal translation can correctly be tested in order to ensure precision and validity for application and implementation. The paper will argue that the main goal of legal translation and the major criterion against which the precision of legal translation should be tested is to reproduce the same legal effect in the target text as that conveyed in the source text regardless of the method(s) used in the translation process.