Halberstam on the History and Philosophy of Federalism(s) in the United States and Europe @UMichLaw

Daniel Halberstam, University of Michigan Law School, has published 'A People for Certain Purposes': On the History and Philosophy of Federalism(s) in the United States and Europe as U of Michigan Public Law Research Paper No. 619. Here is the abstract.

This brief guide to the philosophy of federalism provides an original analysis distinguishing the flurry of competing conceptual accounts of federalism in the United States and Europe. It draws out and critically examines the theories of sovereignty and federalism of James Madison, James Wilson, John C. Calhoun, Hans Kelsen, and Carl Schmitt, all with a view to understanding the kind of federation we have in the European Union today.

Download the article from SSRN at the link.

New From Hart Publishing: Christoph Kletzer, The Idea of a Pure Theory of Law (2018) @hartpublishing @c_kletzer

New from Hart Publishing: Christoph Kletzer, The Idea of a Pure Theory of Law: An Interpretation and Defence (2018). Here from the publisher's website is a description of the book's contents.

Most contemporary legal philosophers tend to take force to be an accessory to the law. According to this prevalent view the law primarily consists of a series of demands made on us; force, conversely, comes into play only when these demands fail to be satisfied. This book claims that this model should be jettisoned in favour of a radically different one: according to the proposed view, force is not an accessory to the law but rather its attribute. The law is not simply a set of rules incidentally guaranteed by force, but it should be understood as essentially rules about force. The book explores in detail the nature of this claim and develops its corollaries. It then provides an overview of the contemporary jurisprudential debates relating to force and violence, and defends its claims against well-known counter-arguments by Hart, Raz and others. This book offers an innovative insight into the concept of Pure Theory. In contrast to what was claimed by Hans Kelsen, the most eminent contributor to this theory, the author argues that the core insight of the Pure Theory is not to be found in the concept of a basic norm, or in the supposed absence of a conceptual relation between law and morality, but rather in the fundamental and comprehensive reformulation of how to model the functioning of the law intended as an ordering of force and violence.

 

Paulson on Metamorphosis in Hans Kelsen's Legal Philosophy

Stanley L. Paulson, Washington University Law School (Emeritus), has published Metamorphosis in Hans Kelsen's Legal Philosophy at 80 The Modern Law Review 860 (2017). Here is the abstract.

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 full text is not available from SSRN.

Spaak on Legal Positivism, Conventionalism, and the Normativity of Law @Stockholm_Uni

Torben Spaak, Stockholm University, has published Legal Positivism, Conventionalism, and the Normativity of Law. Here is the abstract.

The aim of this article is to investigate and see whether we can account for the normativity of law within the framework of legal positivism and whether the idea of a social convention could be of help in this endeavor. As I shall explain, I do not believe that it is possible to offer such an account; and to illustrate the difficulties involved in trying to do so, I am going to consider the accounts of the normativity of law proposed by three prominent jurisprudents, who all work in the tradition of legal positivism, namely, Hans Kelsen, Gerald Postema, and Andrei Marmor. I argue (A) that we need to distinguish carefully between (a) the problem of accounting for the normativity of law, conceived as a necessary property of law, and (b) the problem of accounting for the use of normative legal language on the part of judges, attorneys, legal scholars, and others; (B) that the contemporary debate about the normativity of law, which mainly concerns (a), is in substance, if not in form, more or less identical to the old debate between legal positivists and non-positivists; (C) that one simply cannot account for the normativity of law, conceived along the lines of (a), within the framework of legal positivism, whether or not one invokes the idea of a social convention, and that the problem of the normativity of law thus conceived and considered within the framework of legal positivism, is not an open, and therefore not a very interesting, legal-philosophical question; (D) that the important question for a legal positivist is whether a given legal order (or legal system) is in fact normative, in roughly the sense of justified (or authoritative) normativity (a notion to be explained below), and that to determine whether this is so, one needs to consider the content and the administration of this legal order; and (E) that the idea of conditional normativity, or normativity from a point of view, although of considerable interest when discussing (b), is of little or no interest to those who are concerned with (a). As regards claim (C), I argue, more specifically, (C1) that Kelsen’s theory of the basic norm offers no solution to (a), because it offers nothing more than normativity from a point of view, and that it is better understood as aiming to solve (b), (C2) that Gerald Postema’s coordination convention account, although in many ways a very fine account, cannot (as Postema is well aware of) generate obligations for the citizens, as distinguished from the legal officials, and (C3) that Andrei Marmor’s constitutive convention account, which capitalizes on the idea of conditional normativity, does not and cannot take things further than Kelsen’s basic-norm account does. On route to establishing claims (A)-(E), I also argue (i) that when discussing (α), we should focus on the level of legal orders (legal systems), not on the level of individual legal norms, (ii) that the claim that law is necessarily normative is to be understood as the conceptual claim that necessarily, if x is a legal norm, x is normative, not as the essentialist claim that if x is a legal norm, x is necessarily normative, and (iii) that we should think of the concept of a legal ‘ought’ as having the function of connecting grounds (or conditions) and consequences in legal norms and of the import of the concept of ought (or, roughly, the meaning of the word ‘ought’) as being the same in different fields. Furthermore, I argue (iv) that we should distinguish between different grades (or degrees) of normativity; (v) that the most interesting grade of normativity when discussing (α) is what Joseph Raz has called justified normativity; and (vi) that we may think of moral philosopher David Copp’s notion of authoritative normativity as an illuminating specification of the somewhat loose idea of justified normativity.

Download the article from SSRN at the link.

Cyras and Lachmayer on Visualization of Hajime Yoshino's Logical Jurisprudence

Vytautas Cyras, Vilnius University, and Friedrich Lachmayer, University of Innsbruck, have published Visualization of Hajime Yoshino's Logical Jurisprudence, at Trends and Communities of Legal Informatics: Proceedings of the 20th International Legal Informatics Symposium (IRIS) 2017 349 (E. Schweighofer, F. Kummer, W. Hoetzendorfer, and C. Sorge, eds., OCG, Vienna, 2017). Here is the abstract.

Hajime Yoshino’s Logical Jurisprudence (LJ) is an important concept in legal informatics. Yoshino aims for a logic-based systematization in the legal domain. He focuses on legal reasoning and systematization. Inevitably, embracing law as a whole brings us to Hans Kelsen’s Pure Theory of Law. In sum, three issues are important in LJ: logic, Kelsen and legal informatics. In this paper we aim to visualize the architecture of LJ. We suggest expanding this with legal ontologies and words. The granularity of word-phrase-sentence-text is about different methods which apply to different units.

Download the essay from SSRN at the link.

Ralf Poscher on the Hermeneutical Character of Legal Construction

Ralf Poscher, Albert-Ludwigs-Universitaet, Freiburg, is publishing The Hermeneutical Character of Legal Construction in Law's Hermeneutics: Other Investigations (Simone Glanert and Fabien Girard, eds., London: Routledge, 2016). Here is the abstract.

Ever since Carl Friedrich von Savigny and Francis Lieber introduced the distinction, lawyers and legal theorists distinguish between legal interpretation and legal construction. The article wants to defend and reconstruct the distinction on the basis of an intentionalist account of hermeneutics. Interpretation in the most general sense is a specific form of explanation. It is an explanation at the level of intentional phenomena like believes, desires, intentions, actions and their products. The interpretation of texts is a specific case of this more general kind of explanation. It explains the meaning of utterances on the basis of the intentions of their authors. In legal interpretation the author is the legislator. Legal construction sets in when legislative intentions have run out. Legal construction amends the law. But how could legal construction still be considered a hermeneutical activity if it cannot explain meaning by relying on prior intentions of an author, if it does not interpret existing law, but creates new law? Aren’t many legal theorists – be they legal realists or normativists like Hans Kelsen – right to insist that legal construction is more akin to legislation even if at a different level of abstraction? The article defends the hermeneutic character of legal construction by showing that it distinguishes itself from legislation through its relation to a text. It is the intentionalist structure of justification, which gives legal construction its hermeneutic character and set it apart from legislation even though it creates new law. That the justification cannot relate to an actual legislative intent but has to take refuge to a fictive one distinguishes legal construction from legal interpretation. Once in place the intentionalist account of legal construction can clarify some of its features like its relation to rule of law standards, its generality, consistency and rationality requirements, as well as its truth aptness.

Download the essay from SSRN at the link.

Mario Losano On Kelsen's Theory of International Law During His Geneva Exile

Mario G. Losano, Accademia delle Scienze di Torino, has published Kelsen's Theory on International Law During His Exile in Geneva at 28 Ratio Juris 470 (2015). Here is the abstract.

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.

The full text is not available from SSSRN.

The Influence of Robert M. Cover

Roy Andrew Partain, Soongsil College of Law, has published Ecologies of Paideic Law: Environmental Law and Robert M. Coverʼs Jurisprudence of 'Nomos and Narratives' , at 24 Hanyang Law Review 423 (2013). Here is the abstract.

This article provides an extensive introduction to the legal philosophy of Robert M. Cover and begins a discussion on how his principles of jurisgenesis could be applied in environmental law. This article suggests that a deeper appreciation of Cover’s jurisprudence could better assist in the development of climate change legislation.
Robert M. Cover was a legal scholar at Yale Law School who died in 1986, tragically early in his career, leaving many aspects of his innovative jurisprudence incomplete. Despite those circumstances, he has become one of the top-most cited legal scholars in American jurisprudence. In particular, he is best known for his “Nomos and Narratives” theory of law. Cover’s legal philosophy holds that the laws and narrative traditions of a culture cannot be critically separated, that they must be understood to operate intertwined. Further, he argued certain aspects of the narrative cultures must be included in the concept of law, in the corpus juris, alongside more explicit forms such as constitutions, legislations, and judicial decisions. Thus, Cover argued, legal scholars have been overly focused on one type of law to the neglect of other types of law.

Cover introduced the concept of paideic jurisgenesis and of jurispathic judges to counter the legal theories of H.L.A. Hart, Hans Kelsen, and Ronald Dworkin. Cover’s theory provides a more complete framework to answer Dworkin’s question of how judges resolve ‘hard’ legal cases. A ‘hard’ case exists when both sides of an adversarial courtroom can provide sound legal support for their arguments; Dworkin posited that jurisprudence is simply the investigation of how judges resolve that conflict. Whereas Hart, Kelsen and Dworkin saw a shortage of law, of a need to explain how law was created by judges, Cover concluded to the contrary that law actually existed in over-supply and that judges act to eliminate surplus laws to resolve ‘hard’ problems.

Cover balanced the development of paideic laws, i.e. narratively evolved laws, with the controls of imperial, i.e. governmental, legislation and jurispathic judges. Cover named this universe of legal meaning and context-rich interpretations ‘nomos’, borrowing from the Greek language for ‘law’. Cover proposed that social groups created laws via social cohesive narratives of obligations, coercion, and socially-endorsed enforcement. But this organic process of legislation could create too many overlapping legal systems as each society contains multiple social groups. Legislatures were seen by Cover as providing a democratic process to select Kelsenian Grundnormen to better align the diverse legal narratives of multiple social groups. Cover then saw the key role of judges as jurispathic, to eliminate legal chaos when too much law exists.

A legal scholar, in Cover’s world, has two roles. First, to observe and appreciate the organic and paideic narratives that create the laws in the legal scholar’s nomos-verse. Second, to provide the legal scientific understandings necessary to support the judiciary’s jurispathic duties. In both cases, a legal scholar has the opportunity to engage and interact in the development of law. A legal scholar can become engaged in the development of the paideic narratives and social dialogs that create paideic law. A scholar can assist in the development of the imperial legal structures that provide stability and unity to the social group. Cover was particularly interested in the development of Human Rights and Civil Rights laws, but his theories and techniques have found applications in many other areas of law.

This article provides a preliminary example of Cover’s theories in regards to the development of climate change legislation. The article takes notice of the historical problems to develop and enforce climate change legislation. The article examines Cover’s theories to uncover the practical legal and policy tools suggested by his theories of jurisprudence. The article suggests a list of methods wherein Cover’s theories could be applied to climate change legislation.

Donwload the article from SSRN at the link. 

Hans Kelsen and Modern Law

Christoph Kletzer, King's College London School of Law, has published Primitive Law. Here is the abstract.

This paper discusses the nature and functioning of modern law along Kelsenian lines, starting from a very instructive example of Ancient Germanic Law regulating the legal effects of murder.

Download the paper from SSRN at the link.