The Dynamics of Legal Positivism. Some Remarks on Shiner's Norm and Nature

In a recently published book, Roger Shiner shows that understanding the fundamental discrepancies between different legal theories is important for a better understanding of law itself. He argues that one of the most important tasks of legal philosophers is to take into account the dynamics or conceptual movements generated by positivism and antipositivism. Our paper intends to show that Shiner's analysis can be developed and modified when other relevant elements are introduced into the universe of discourse. We emphasize the importance of a positivistic conception of legal science. According to Shiner, an adequate theory of law must reproduce the way in which legal norms work in the lives of the participants who accept the law. After analyzing the distinction between norms and norm propositions and the relationship between legal science and the external point of view, we show that legal positivism is not committed to reproducing the internal point of view to law.     

Some Remarks on the Concept of Toleration

The paper contains a conceptual analysis of "act of toleration" and the property of "being tolerant". Being tolerant is understood as a dispositional property of persons manifested in what the author calls the "circumstances of toleration". The main circumstances distinguished are: a tendency to prohibit a certain behaviour and the competence to determine the deontic status of the behaviour in question. An act of toleration, then, consists in not prohibiting (or cancelling the prohibition of) that behaviour. It is argued that this requires the existence of two different normative systems, the "basic system", and the "justifying system". Acts of toleration must be based on reasons coming from the latter. This insight enables one to establish a difference between reasonable and unreasonable toleration, as well as between toleration and related concepts like indifference, acquiescence, etc. The analysis also introduces the distinction between "vertical" and "horizontal" toleration. Acceptance of this last category implies that toleration does not necessarily require hierarchical relationships between those who tolerate and those whose actions are tolerated.     

On Collective Actions. Some Remarks on the Theory of Legal Actions

In this paper the author deals with collegial judicial decisions as a form of human action. The scope is, however, limited to three questions: (1) What is the structure and the status of the general theory of action; (2) Is this theory applicable to such performative acts as judicial decisions; and finally, (3) Is it possible to speak about action in connection with collective agents such as collegial courts? The author defends the thesis that general theory of action as such is applicable to collective action, too, because the difficulty is not in the structure of that theory, or in its “individual character,” but specifically in the notion of “collective will.” This kind of “will” is epistemologically always a result of a political procedure, and speaking about the “collective will” presupposes the analysis of these procedures, because in practice they and only they formulate “collective motives,”“collective beliefs” and the like.     

Some Remarks on Criminology and Moral Philosophy

Recent developments in philosophy and in criminology indicate that there are significant respects in which the two disciplines can be mutually informing. Many philosophers are increasingly interested in exploring empirical aspects of philosophical claims, and criminologists are finding their way past the alleged fact/value distinction and are rediscovering the moral significance of facts, especially regarding punishment and desistance. In some recent criminological studies there are implicit links to the British moralists such as David Hume and Adam Smith, and to Aristotle as well. This paper explicates those links and some of the possibilities for philosophy and criminology to be mutually informing.     

Some Remarks on Implementation of Community Sanctions and Measures

We must acknowledge, of course, that custody must be available as the ultimate sanction for criminal offending, but it must be an option of last resort. At last, not at least, there must be a realisation of the enormous cost - in economic and particularly in human terms. Therefore, the basic question is: What is the cheapest and at the same time the most effective way of punishment, bearing in mind the failure of strong repressive measures and only a partial success of depenalisation and decriminalisation? The community sanctions and measures seem to be the best solution and they can, to a certain extent, meet the expectation put into them. I am not going to describe the individual alternatives or the way of their implementation in Western Europe or North America. I would like to concentrate on some problems related to their introduction, which are faced in post-totalitarian societies.     

多式联运：关于当代法律的评论

德国运输法的改革法案于 1998年 7月 1日生效。新法最主要的变化是为国内的各种货物运输方式 ,包括公路、铁路、内水和航空运输 ,制定了一套相同的法律规则 ,同时第一次为多式联运制定了规则。本文主要以德国法为对象 ,同时比较中国、荷兰和法国法 ,论述多式联运合同的定义 ,适用法律 ,责任限制等问题。     

The Scope of Article 12 EC: Some Remarks on the Influence of European Citizenship

Abstract:  According to European Court of Justice (ECJ) case-law, the scope of application of the EC Treaty is engaged under the following conditions when the free movement of persons has been established: a cross-border connection is given; the Union citizen concerned resides legally in the host Member State; and the measure in question or the regulation has a connection with the residence or facilitates it. This condition will regularly be fulfilled since nearly every (national) regulation has a direct or indirect effect on the stay. A general link to primary or secondary law is, on the other hand, not necessary. Secondary law, however, can be significant in connection with the lawful residence. Even if partly vehement critiques have been formulated against this approach of the ECJ, it is convincing with regard to the aim of guaranteeing the free movement to European citizens.     

Some Remarks on the Notions of Legal Order and Legal System

Abstract
In this paper, the authors discuss some problems related to the existence and identity of legal norms and legal systems. Firstly, two criteria for identification of legal norms are analyzed: linguistic criteria and non-linguistic criteria. Secondly, the dynamics of legal systems and the distinction between legal system and legal order are examined (close to Raz's distinction between momentary legal system and legal system). Based on the logical relations of membership and inclusion, two ways of analysing the change of legal systems are suggested. Thirdly, a criterion for identification of legal orders (from Bulygin) is discussed and it is shown that this criterion does not explain adequately, on the one hand, the existence of some norms, i.e., customary norms; and, on the other, the existence of invalid norms; i.e., unconstitutional norms. The main conclusions of this paper are: (a) the concepts of legal system and legal order could not explain the existence of law in a given society; (b) the concepts of legal system and legal order could be considered models of rational normative systems.     

Iudex in Fabula: Some Reflections on Jackson's Paper

The key issue of this paper is that Professor Jackson's attempt to shednew light on the notion of literal meaning is both stimulating andunconvincing. On the one hand he is perfectly right when he tries todraw attention to the shortcomings which affect most of the longstandingtheories about legal interpretation. In fact, his essay is based on thefooting that interpretation is under-determined by semantic rules andconventions. From such a point of view, as both rule-scepticism and thesemantic conception are old fashioned and unsound, we need acomprehensive theory of textual structures. On the other hand, however,Professor Jackson concedes too much to rule-scepticism with hisnarrative approach. Furthermore, his too sharp opposition between themodern Western model of law, mainly a written law where so-called``literal meaning' is of the greatest importance (at least on anideological ground), and the model of early Biblical law, where themeaning stems from the social context, does not hold completely. It iseasy to find legal systems, for instance the later rabbinic law, whichneither of Jackson's two models can explain, since the reality of law isfar more complex than we believe.     

我国死刑制度现状评析

随着社会的发展 ,我国死刑制度的弊端日渐显现。基于我国国际形象和国际交往的需要 ,与国际条约、惯例接轨的要求 ,以及理论和实践的需要 ,在现实和理想之间 ,限制死刑理所当然 ,而废止死刑也应作为不懈追求的目标。     

The Limits of Senatorial Courtesy

Because of senatorial courtesy, scholars typically assume that presidents defer to home state senators from their party when selecting judges for the federal courts. We challenge this view, arguing that presidents face structural incentives that encourage them to consult broadly with senators across the partisan and ideological spectrums in choosing nominees. Using new data on the fate of judicial vacancies on the federal district courts between 1947 and 1998, we show how institutional and political forces increase interested senators' leverage in choosing federal judges. Senatorial courtesy, we conclude, has its limits, given presidents' incentives to consult with institutionally empowered senators in selecting nominees.     

The Limits of Theoretical Integration

The integration of theoretical knowledge is often seen as the ultimate goal of research activity in the social sciences. In this article I explore limits in the form and degree to which our knowledge can be integrated, as well as limits in the worth and desirability of some kinds of integration. Most of the analysis depends on drawing two kinds of distinctions in theoretical activity—between theoretical and metatheoretical work and among different types of integration in each kind of work. Using primarily examples from theory and research on justice issues, I articulate three different ways in which work at the theoretical level can be integrated. Each type represents a distinct kind of knowledge development, requires different criteria of evaluation, and involves a varying degree of difficulty to achieve. Nevertheless, each of these types of integration is well worth pursuing. Justice research shows evidence of work involving all three types. Using a somewhat broader range of examples, I also distinguish three different ways in which metatheoretical work might be integrated. Again, each type is quite distinct and should be evaluated in different ways. However, each of these types is significantly more difficult to achieve than any of the types of theoretical integration. Moreover, I suggest that the last metatheoretical type—involving the integration of entire strategies, perspectives or schools of thought—is probably not even a desirable goal. As a consequence of these analyses, I recommend (1) that social scientists in general (and justice researchers in particular) focus most of our attention on one or another of the types of theoretical integration, and (2) that we articulate clearly which type of integration we are pursuing and evaluate our success at the effort using only the appropriate criteria. An earlier version of this paper was presented at the Social Justice Conference in Bremen, Germany, 10–12 March 2005.

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