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Essays in Legal and Moral Philosophy
This suggests that Wolff's concern is better understood asscepticism about whether it is justifiable to surrender one's judgmentwholesale to the law. Some philosophers have queried theintelligibility of this doubt; they say that it is of thenature of law that there is an obligation to obey it, at leastin its central case (Fuller 1958, 100; Finnis 1979, 14–15). Some go so far as toconclude that it is therefore absurd to ask for any ground ofthe duty to obey the law: law is that which is to be obeyed (McPherson 1967,64). We need a way into this circle, and the best entrance is inspecifying the nature of law in a way compatible with various theoriesof its nature. Three features are especially important (drawing on Hart1994, 193–200; Raz 1990, 149–54; and Lyons 1984, 66–68.) First, law isinstitutionalized: nothing is law that is not connected withthe activities of institutions such as legislatures, courts,administrators, police, etc. Second, legal systems have a widescope. Law not limited to the affairs of small face-to-face groupssuch as families or clans, nor does it only attend to a restricteddomain of life such as baseball. Law governs open-ended domains oflarge, loosely structured groups of strangers and it regulates theirmost urgent interests: life, liberty, property, kinship, etc. Butalthough law necessarily deals with moral matters, it does notnecessarily do so well, and this is its third central feature: law ismorally fallible. This is acknowledged by both positivists andnatural lawyers, whose slogan “an unjust law is not a law”was never intended to assert the infallibility of law.
The question of political obligation, then, turns on whether thereis are moral reasons to obey the mandatory requirements of awide-ranging, morally fallible, institutionalized authority. Thisobligation purports to be comprehensive in that it covers all legalobligations and everyone whose compliance the law requires. It is notassumed to bind come what may, though it is to be one genuineobligation among others. Some philosophers also consider that it shouldbind people particularly to their own states, i.e., the states of whichthey are residents or citizens, and that an argument that could notshow that one had more stringent duties to obey one's own country thana similarly just foreign one would be in that measure deficient(Simmons 1979, 31–35; Green 1988, 227–28). Finally, it is common ground theobligation exists only when a threshold condition of justice ismet.
Hans Kelsen, Essays in Legal and Moral Philosophy - …
Whatever else they do, all legal systems recognize, create, vary andenforce obligations. This is no accident: obligations are central tothe social role of law and explaining them is necessary to anunderstanding of law's authority and, therefore, its nature. Not onlyare there obligations in the law, there are also obligationsto the law. Historically, most philosophers agreed that theseinclude a moral obligation to obey, or what is usually called“political obligation.” Voluntarists maintained that thisrequires something like a voluntary subjection to law's rule, forexample, through consent. Non-voluntarists denied this, insisting thatthe value of a just and effective legal system is itself sufficient tovalidate law's claims. Both lines of argument have recently come underintense scrutiny, and some philosophers now deny that law is entitledto all the authority it claims for itself, even when the legal systemis legitimate and reasonably just. On this view there are legalobligations that some of law's subjects have no moral obligation toperform.
English translation of the second edition of the Reine Rechtslehre, published in 1960 (a significant expansion and revision of the 1934 book of the same name). With , one of the major statements of legal positivism in the 20th century. Kelsen’s positivism, however, has been somewhat less influential among Anglophone legal philosophers. Kelsen is difficult, but he is essential reading for graduate students and scholars.
Hans Kelsen Essay In Legal And Moral Philosophy ..
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Essays in Legal and Moral Philosophy - Springer
The first half of the essay gives an overview of Hart’s theory, Dworkin’s criticisms of that theory, and replies to those criticisms and developments of positivism, especially in the work of Raz. Usefully compared with . Reprinted in Leiter’s Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy (Oxford: Oxford University Press, 2007).
Essays in Legal and Moral Philosophy - Hans Kelsen, …
On the face of it, some laws have other functions. A requirementthat “a will must be signed” generally imposes no duty—not a duty to make a will, and not even a duty to have itsigned if you do—it sets conditions in the absence of which thedocument simply does not count as a valid will. Nonetheless, somephilosophers, including Jeremy Bentham and Hans Kelsen, argue that thecontent of every legal system can and should be represented solely interms of duty-imposing and duty-excepting laws. Bentham asks,“What is it that every article of law has in common with therest? It commands and by doing so creates duties or, what isanother word for the same thing, obligations” (Bentham 1970,294). (For a related contemporary view, see Harris 1979, 84–106.) They thinkthat analyzing laws this way reveals what legislators or subjects mostneed to know: under what conditions the coercive power of law willultimately be met. Others argue that even if such a reduction werepossible, it would be unwieldy, uninformative and unmotivated,concealing as it does the different social functions that laws fulfil(Hart 1994: 26–49) and the different kinds of reasons for action thatthey create (Raz 1990). Others still, despairing of any principled wayof knowing what a law is, have abandoned the problem entirely and triedto develop a theory of law that bypasses it (Honoré 1977; Dworkin1978: 71–78). At a minimum, it does seem clear that whether or not alllaws impose obligations, they can only be fully understoodthrough their relations to those that do. Thus, a legal right is aninterest that warrants holding others under an obligation to protectit, a legal power is the ability to create or modify obligations, andso forth.
Hans kelsen essays in legal and moral philosophy
This chapter discusses one of Kelsen's doctrines on legal philosophy. It focuses on his theory of the basic norm, which has earned criticism as well as admiration for the obscure manner in which Kelsen explained it. In the chapter, an attempt to demythologize the concept of the basic norm is made. It also explains the concept of Kelsen's theory to provide answers to some of the well-known jurisprudential issues. The chapter seeks not to retrace the developments of the theory; rather, it will be examined in relation to the problems it was designed to solve. Only Kelsen's use of the concept of basic norm in legal theory is examined in the chapter. Topics discussed include the nature of the theory, the basic norm and its idea of the unity of legal systems, the theory and its stand on the normativity of law, the theory and its stand on the moral value of law, Kelsen's idea of the nature of the normativity of law, and the individualistic and legal viewpoint of the normativity of law.
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