Radbruch and Hart on the Grudge Informer: A Reconsideration

Hart's defense of the separation of law and morality is partly based on his refusal to accept Radbruch's solution of the well‐known grudge informer case, in his famous article “Statutory Injustice and Suprastatutory Law.” In this paper, I present a detailed reconstruction of the “debate” between Radbruch and Hart on this case. I reach the conclusion that Hart fails to address the issue that was Radbruch's primary concern, namely the legal position of the judiciary when dealing with criminal statutes. I suggest that Hart's separation thesis cannot be upheld in the face of this concern. In my argument, Hart's mistaken understanding of the verdict of the Oberlandesgericht Bamberg that he refers to plays a crucial role.     

Gustav Radbruch vs. Hans Kelsen: A Debate on Nazi Law*

Abstract. Can the label “law” apply to rules as amoral as the enactments of the Nazis? This question confronted the courts in Germany after 1945. In dealing with it, the judges had to take sides in the philosophical debate over the concept of law. In this context, the prominent voices of the legal philosophers Gustav Radbruch and Hans Kelsen could not go unheard. This paper draws on what could have been the “Radbruch‐Kelsen debate on Nazi Law.” In examining the debate, it will argue for a substantive account of the morality of the law, as expressed in Radbruch's Formula.     

Metamorphosis in Hans Kelsen's Legal Philosophy

Two major questions stem from the fundamental shift in Hans Kelsen's legal philosophy that takes place in 1960 and the years thereafter: first, the scope of the shift and, second, its explanation. On the first question, I argue that the shift is not limited to Kelsen's rejection of the applicability of logic to legal norms. Rather, it reaches to his rejection of the entire Kantian edifice of his earlier work. On the second question, I argue that the explanation for the shift has a conceptual dimension as well as a historico‐biographical dimension. That is, I argue that Kelsen's rejection of the principle of non‐contradiction vis‐à‐vis legal norms reaches to the Kantian edifice in that the principle was presupposed in Kelsen's earlier work and appears, expressis verbis, in his ‘Kantian filter’. And I argue that certain historico‐biographical data are germane, including, quite possibly, the earlier revolution in Kelsen's thought, that of 1939–40.     

The Sheffield School and Discourse Theory: Divergences and Similarities in Legal Idealism/Anti‐Positivism*

Abstract. When first I began this paper, I envisaged it as a fairly straightforward exercise in comparison between the Sheffield School’s and Discourse Theory’s varieties of legal idealism or anti‐positivism (these terms being synonymous for the types of theory that contest positivism’s separation thesis, that is, the contention that there is no necessary conceptual connection between law and morality). One obvious distinction, for example, is between the moral substance at the heart of these respective theories: the Sheffield School’s legal theory being founded on Alan Gewirth’s Principle of Generic Consistency, and Alexy’s theory focusing on Radbruch’s intolerable degree of injustice. However, the more I thought about the two respective theories, the more interested I became in one particular issue: the denial of the separation thesis that constitutes legal idealism. Here, I present a paper which is not so much concerned with the substance of two different types of legal idealism or anti‐positivism, but which focuses on the question of whether and in what way either or both of the theories can correctly be characterised as legal idealist or anti‐positivist. I focus in this paper on two works in particular: Deryck Beyleveld and Roger Brownsword’s Law as a Moral Judgment (1994), and Robert Alexy’s The Argument from Injustice (2002).     

哈富论战、拉德布鲁赫公式及纳粹法制迷案——从历史视角透析理论问题

五十年前的哈富论战不仅活跃了当时的学术环境,也为法哲学领域留下了许多值得反复推敲的理论难题,而其中关于纳粹统治下的司法疑难问题的讨论,多年来常常引起许多涉及范围甚广的争议。本文就是试图立足于从更广阔的历史视角出发,考察哈富论战中相关的理论问题,对以告密者案件为代表的纳粹法制迷案进行更加细致的梳理,进而对哈特、富勒与拉德布鲁赫的学说背景加以重述,澄清有关的历史观念问题,并据此对相关理论问题的属性进行一些分析。     

Legal Certainty and Correctness

What is the relation between legal certainty and correctness? This question poses one of the perpetual problems of the theory and practice of law—and for this reason: The answer turns on the main question in legal philosophy, the question of the concept and the nature of law. Thus, in an initial step, I will briefly look at the concept and the nature of law. In a second step, I will attempt to explain what the concept and the nature of law, thus understood, imply for the relation between legal certainty and correctness. Here three issues will be considered: first, the Radbruch formula as an answer to the problem of extreme injustice; second, the special case thesis, which claims that legal argumentation is a special case of general practical argumentation; and, third, the problem of the judicial development of the law.     

Two Schools of Legal Idealism: A Positivist Introduction*

Abstract. The author focuses his attention on two schools of legal idealism: the so‐called Sheffield School and the “discourse ethics” school. In order to emphasize the valuable facets of each school, the author analyzes four different points: (1) the claim to correctness as a necessary feature of law, (2) the connection between correctness and validity, (3) the qualifying or classifying status of this connection, (4) and the desirability of adopting the “Radbruch’s Formula.” Finally, the author analyzes the weaknesses of each theory. **     

Mobilizing Law in Latin America: An Evaluation of Black's Theory in Brazil

This research addresses two separate but related questions. First, to what extent are sociological theories proposed to explain legal behavior in Western societies applicable to non‐Western contexts? And second, to what degree is Black's theory of law generalizable, as he contends, “across time and space?” Our research merges these questions by exploring the applicability of Black's theory in a Latin American context. Data collected from a nationally representative survey in Brazil suggest support for Black's propositions regarding the impact of vertical, horizontal, cultural, and normative status on the likelihood of mobilizing the law, as well as the feasibility of using his framework for understanding legal behavior in non‐Western settings. Our discussion considers implications and directions for future analyses in both the Brazilian and cross‐cultural contexts.     

On the Concept and the Nature of Law

Abstract. The central argument of this article turns on the dual‐nature thesis. This thesis sets out the claim that law necessarily comprises both a real or factual dimension and an ideal or critical dimension. The dual‐nature thesis is incompatible with both exclusive legal positivism and inclusive legal positivism. It is also incompatible with variants of non‐positivism according to which legal validity is lost in all cases of moral defect or demerit (exclusive legal non‐positivism) or, alternatively, is affected in no way at all by moral defects or demerits (super‐inclusive legal non‐positivism). The dual nature of law is expressed, on the one hand, by the Radbruch formula, which says that extreme injustice is not law, and, on the other, by the correctness argument, which says that law's claim to correctness necessarily includes a claim to moral correctness. Thus, what the law is depends not only on social facts, but also on what the law ought to be.     

蔡元培“通性说”溯源

蔡元培关于世界本原的思想,既传承了中国道家的"道器说"和宋明以后的"物心说",更糅合了德国古典哲学家康德的"二元世界说"和叔本华的"意志论",并在此基础上提出寻找世界统一本性的"通性"说."通性说"表达了蔡元培为达到理想的大同世界所作的哲学思考和心路历程,成为影响和决定其一生的思想基础.     

Conservatism and common sense: The criminological career of James Q. Wilson

James Q. Wilson and his views have commonly been framed as controversial and, at times, as an anathema to the discipline of criminology. This article first examines Wilson's criminological contributions chronologically, from his research on policing in the 1960s to his moral philosophy of today. Second and concomitantly, it discusses recurrent themes of political conservatism and common sense that dominate Wilson's work. The author concludes that criminology could be further enriched by the diversity, pragmatism, commonsense appeal, and policy relevance of conservative scholarship, such as Wilson's.     

European Studies and the European Crisis: Legal and Political Science between Critique and Complacency

European Studies used to be dominated by legal and political science approaches which hailed the progress of European integration and its reliance on law. The recent set of crises that struck the EU have highlighted fundamental problems in the ways and means by which European integration unfolds. The quasi‐authoritarian emergency politics deployed in the euro crisis is a radical expression of the fading prevalence of democratic processes to accommodate economic and social diversity in the Union. As we argue in this paper, however, the mainstreams in both disciplines retain a largely affirmative and apologetic stance on the EU's post‐democratic and extra‐constitutional development. While political science contributions mostly content themselves with a revival of conventional integration theories and thus turn a blind eye to normatively critical aspects of European crisis governance, legal scholarship is in short supply of normatively convincing theoretical paradigms and thus aligns itself with the functionalist reasoning of the EU's Court of Justice. Yet, we also identify critical peripheries in both disciplines which intersect in their critical appraisal of the authoritarian tendencies that inhere in the crisis‐ridden state of European integration. Their results curb the prevailing optimism and underline that the need for fundamental reorientations in both the theory and practice of European integration has become irrefutable.     

Crime, Freedom and Civic Bonds: Arthur Ripstein’s Force and Freedom: Kant’s Legal and Political Philosophy

There is no question Arthur Ripstein’s Force and Freedom is an engaging and powerful book which will inform legal philosophy, particularly Kantian theories, for years to come. The text explores with care Kant’s legal and political philosophy, distinguishing it from his better known moral theory. Nor is Ripstein’s book simply a recounting of Kant’s legal and political theory. Ripstein develops Kant’s views in his own unique vision illustrating fresh ways of viewing the entire Kantian project. But the same strength and coherence which ties the book to Kant’s important values of independence blinds the work to our shared moral ties grounded in other political values. Ripstein’s thoughts on punishment are novel in that he embeds criminal law, both in its retributivist and consequentialist facets, into Kant’s overarching political philosophy to show how criminal law can be seen as one aspect of the supremacy of public law. But a criminal law solely focused on the preservation of freedom takes little notice of the ways criminal law need expand its view to account for how a polity can restore the victim of a crime back to civic equality, reincorporate offenders after they have been punished and cannot leave past offenders isolated and likely to reoffend, resulting in the rotating door prison system and communities of innocents who remain preyed upon by career criminals. Lastly, a political theory that does not prize our civic bonds will ignore the startling balkanization of our criminal punishment practices, where policing, arresting and imprisonment become tools of racial and social oppression. In illustrating the benefits in viewing criminal law as a coherent part of Kant’s political theory of freedom, Ripstein also highlights what is absent. It then becomes clear that though Kant presents one important facet of punishment, only a republican political theory can meet the most pressing moral demands of punishment by reminding us that criminal law must be used to preserve and strengthen civic society.     

From Public Sociology to Public Philosophy: Lessons for Law and Society

The late Philip Selznick's final book, A Humanist Science, examines the role of values and ideals in the social sciences, including the study of law and society. Throughout his academic career, Selznick was committed to what he called “legal naturalism,” a sociological version of the natural-law perspective, while his critics continue to adhere to various forms of positivism. But the age-old opposition between natural law and legal positivism today may be giving way to the quest for public sociology—a sociology that promotes public reflection on significant social issues and thus functions as a moral and political force. A Humanist Science ends with a strong plea for public philosophy. Public philosophy overlaps with public sociology but is a much stronger concept. Selznick's message of public philosophy may be another of his enduring contributions to the field of law and society.     

“How Do I Bring Diversity?” Race and Class in the College Admissions Essay

In the first systematic study of what college applicants invoke when required to submit a diversity essay, we revisit many settled assumptions on both the left and the right about how such an essay would operate after Grutter and Gratz as well as after the passage of anti–affirmative action ballot initiatives. Our data are a sample of 176 diversity essays submitted to the University of Michigan in the immediate aftermath of the University's Supreme Court win, analyzed both qualitatively and quantitatively with special attention to the differences that the essay writer's race and class position make. We find that in many respects the essays are similar when written by applicants from similar backgrounds but different races, and that conservative critics were wrong to assume the essay would function simply as a way of announcing oneself as an under‐the‐table affirmative action candidate. Rather than suggesting a straightforward lineup of advantage and disadvantage, we suggest rather that the essay is a vehicle for the youngest generation of citizens to both receive and send back a new conception of difference that has some essentializing elements but overall is turning in a postracial, cosmopolitan direction.     

Bodily Integrity,Embodiment, and the Regulation of Parental Choice

In this article we develop a new model of bodily integrity that we designate ‘embodied integrity’. We deploy it to argue that non‐therapeutic interventions on children should be considered within a decision‐making framework that prioritizes embodied integrity. This would counter the excessive decision‐making power that law currently accords to parents, protecting the child's immediate and future interests. Focusing on legal responses to genital cutting, we suggest that current legal understandings of bodily integrity are impoverished and problematic. By contrast, adoption of an ‘embodied integrity’ model carves out a space for children's rights, while avoiding these negative consequences. We propose that embodied integrity should trump competing values in any best‐interests assessment where a non‐therapeutic intervention is requested. Drawing on Drucilla Cornell and Joel Feinberg's theories we argue that protecting a child's embodied integrity is essential to guarantee his/her right to make future embodied choices and become a fully individuated person.     

Form and Formalism: The View from Legal Theory

Abstract. The article considers Robert Summers' new book ( Summers 2006 ), in the context of Summers' earlier work and the role of form and formalism in other jurisprudential discussions. While accepting the value of a form‐centered approach to studying law, the article questions Summers' claim that his approach is clearly superior to (and not merely complementary with) traditional analytic theories, like those of Hart and Kelsen. The article also suggests that the book's discussion of form in contract and commercial law is somewhat disappointing, given Summers' expertise in this area, and the many difficult form‐related questions that area raises.     

Kelsen's Theory on International Law during His Exile in Geneva

Kelsen's monistic theory of international law was shaped during his exile in Geneva (1933–1940), but its deep roots are to be found in his Pure Theory of Law, centred on the neo‐Kantian notion of “system.” According to this conception, a legal system can only descend from a single principle. Consequently, Kelsen constructed a monistic theory of law, i.e., a legal system incorporating all norms into a pyramidal structure culminating in a single principle: the fundamental norm. This Kelsenian pyramid must also include international law, considering that if international law were a legal system different from national law (as the dualistic theory assumes), the theoretical construction would need two fundamental norms. This dualism is as incompatible with Kelsen's monistic vision as Schmitt's theory of “Great Spaces,” creating a hierarchical system of international relations. In the Kelsenian pyramid, international law occupies a position superior to national law: The consequences of this assumption are discussed in some documents recently published in German and French.