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Law and State

Classical Paradigms and Novel Proposals

by Luka Burazin (Volume editor) Đorđe Gardašević (Volume editor) Alessio Sardo (Volume editor)
Thesis 221 Pages

Summary

The fifth volume in the series of the Central and Eastern European Forum for Legal, Political, and Social Theory Yearbook addresses two major topics: law and state. The authors shed new light on some of the classical paradigms in the treatment of these highly prominent topics and offer novel proposals on how to best approach them. The contributions were presented and discussed at the 6th CEE Forum, held in 2014 at the Zagreb Faculty of Law (Croatia) and peer-reviewed by international experts in the field. The volume’s six thematic parts reflect the main issues discussed: Law and State, Methodological Approaches, Language and Law, Constitutional and EU Law, Contemporary State, and State and Crisis.

Table Of Content

  • Cover
  • Title
  • Copyright
  • About the author
  • About the book
  • This eBook can be cited
  • Contents
  • Contributors
  • Introduction
  • Part I: Law and State (Keynote Papers)
  • Law from a Logical Point of View. Three Basic Questions
  • The Emergence and Survival of the Modern State
  • Part II: Methodological Approaches
  • Two Approaches to the Methodology of Legal Theory: Hans Kelsen and Jerzy Wróblewski
  • The Concept of ‘Human Nature’: An Attempt to Approach Law from an Essentialist perspective?
  • Part III: Language of Law
  • Legal Philosophers, Meaning and Force
  • On Impossibility in Law
  • Part IV: Constitutional and EU Law
  • Judicial Review of Constitutional Amendments: A Theoretical Approach
  • The Substance and Effects of EU Law and Jurisprudence under the Social Constructivist Research Agenda
  • Part V: Contemporary State
  • Can We Still Drive the State Machine the ‘Old School’ Way? Structural and Functional Deficits of the Modern State
  • Privatising Law in Western, Multi-Faith and Multicultural Democracies
  • Part VI: State and Crisis
  • States of Crisis and Crises of the State: Redefining the Limits of National Sovereignty and State Powers in Times of Emergency
  • Peacebuilding and Recognition of States: Failures of the International Territorial Administrations in Bosnia and Herzegovina and Kosovo

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Contributors

Martin Belov, assistant professor, University of Sofia “St. Kliment Ohridski”, Faculty of Law, Bulgaria

Marco Stefano Birtolo, Adjunct Professor, University of Molise, Department of Humanities, Education and Social Sciences, Italy

Robin Caballero, PhD student, University Panthéon-Sorbonne Paris 1, France, Humboldt University of Berlin, Germany

Domenica Dreyer, PhD student, University of Bonn, Institute of Political Sciences and Sociology, Germany

Fruzsina Gárdos-Orosz, research fellow, Hungarian Academy of Sciences Centre for Social Sciences, Institute for Legal Studies, Hungary

Giovanni Battista Ratti, associate professor, Tarello Institute for the Philosophy of Law, Department of Law, University of Genoa, Italy

Axelle Reiter, adjunct professor, University of Verona, Department of Economics, Italy

Silvia Salardi, senior researcher, University of Milano-Bicocca, Department of Legal Systems, Italy

Alessio Sardo, postdoctoral researcher, Bocconi University, Department of Law, Italy

Michel Troper, professor emeritus, University of Paris Ouest Nanterre La Défense, France

Monika Zalewska, postdoctoral researcher, University of Lodz, Faculty of Law and Administration, Poland

Silvia Zorzetto, assistant professor, University of Milan, Department of Legal Sciences Cesare Beccaria, Italy ← 7 | 8 →

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Introduction

This volume is the fifth in the series of the Central and Eastern European Forum for Legal, Political, and Social Theory Yearbooks.

The twelve papers in the volume, selected by the volume’s editors and peer-reviewed by international experts in the field, were presented and discussed at the 6th CEE Forum, held at the Faculty of Law, Zagreb, Croatia, on 9–10 May 2014. The Zagreb Forum put special emphasis on two major general topics: (1) Important features of law and (2) Contemporary state: Functions, position and crisis management.

The first topic was dedicated to one of the most fundamental questions in legal theory: What features should or must something have in order to be or be regarded as “law”? We especially welcomed contributions addressing the following questions: Is the essentialist approach to “law” possible at all? Would it be better to analyse law by giving an account of its important features instead of only dealing with its essential or necessary features? How do various theoretical/philosophical approaches to law (e.g., positivism, jusnaturalism, realism) differ with respect to their treatment of the features of law? What are the most important features of law? Has contemporary legal theory achieved at least a certain degree of consensus about some of the purported (important) features of law, such as normativity, coerciveness, institutional character, law’s claim to being a legitimate authority, law’s claim to correctness, law being a union of primary and secondary rules, law being a hierarchical system of norms and law having conventional foundations? What would be the most appropriate methodology (e.g. conceptual analysis, naturalised jurisprudence, normative jurisprudence) for approaching the important features of law?

The second topic was meant to attract papers dealing with the contemporary notion of the state, in particular the (modern) functions of the state, its position with respect to other international and domestic subjects and its “crisis management”. The participants were invited to address the following issues: What are the main functions of the contemporary state? Are the notions of “liberal”, “social” or “welfare” state still applicable? Is the state’s primary role still that of “guardian” of private (e.g. citizens’) interests or have some other levels of domestic and international protection become more significant? Is public law still the crucial context for providing guarantees or are we witnessing a kind of overall “privatisation” of the social services? What are, in this respect, the consequences of the ongoing tendency towards state regionalisation? What is the influence of the rather significant ← 9 | 10 → (constitutional?) development of supranational organisations (e.g. the EU) and their institutions? Has a qualitatively new type of direct relationship between individuals and supranational organisations been established? Are modern types of crises genuine in the sense that they cannot be predicted (e.g. contemporary terrorism; economic crisis)? Does the concept of the state’s “legitimate defense” thus take on a new meaning? What is the relationship between the state and law in modern states of emergency?

The contributors to this volume addressed in one way or another some of the abovementioned issues. Their papers discuss a wide range of subjects, each of which is more related either to the first topic (law) or to the second topic (the state). Since one of our tasks as editors was to arrange the papers in a meaningful order, we divided them into six thematic parts, following the dividing line between the two central topics of the Zagreb Forum. The Yearbook thus starts with two keynote papers addressing issues relating to law and state respectively (Part I – Law and State), constituting a sort of an interlude to the following five parts, three of which are more related to the first topic (Part II – Methodological Approaches, Part III – Language and Law, Part IV – Constitutional and EU Law) and two of which to the second topic (Part V – Contemporary State, Part VI – State and Crisis).

The first part contains the two Zagreb CEE Forum’s keynote papers which are devoted to two main topics in legal philosophy: Law and State. In his paper entitled ‘Law from a Logical Point of View: Three Basic Questions’, Giovanni Battista Ratti examines the puzzling connections between Law and Logic. He rejects the idea that legal systems have an inner logical structure and inquires into the role of logic within legal theory. In order to answer this question he analyses three basic problems: the logical form of legal conditionals, the concept of defeasibility, and the notion of logical consequences. The main thesis defended throughout his paper is the following: logic can be used as a tool that enables us to evaluate the formal correctness of legal argumentations and to reveal how legal reasoning is not logically stringent. Michel Troper’s paper, entitled ‘The Emergence and Survival of the Modern State’, deals with two central historical and theoretical issues: the date of the emergence of modern states and the problem of establishing how, and when, normative hierarchies appeared in legal systems. Troper shows the connection between these two problems and performs an analysis which sheds lights upon both of them. He adopts a truly Kelsenian approach, implemented by means of a deep historical analysis: Law and State are pretty much the same thing; if we discover when the normative hierarchies came into existence in legal ← 10 | 11 → systems, then we also know the time of emergence of the concepts of sovereignty and modern state for there is a deep connection between them.

The second part of this volume is entirely devoted to methodological issues. In her paper ‘Two Approaches to the Methodology of Legal Theory: Hans Kelsen and Jerzy Wróblewski’, Monica Zalewska compares the methodological assumptions and postulates adopted by Hans Kelsen with those endorsed by Jerzy Wróblewski. She evaluates the explicative power of Kelsen’s Pure Theory and compares it with Wróblewski’s syncretism. The basic intuition put forward by Zalewska is that, in order to grasp the concept of law, we should not stick to a narrow approach but use altogether different methods. In her paper ‘The Concept of ‘Human Nature’: An Attempt to Approach Law from an Essentialist Perspective?’ Silvia Salardi examines the very possibility of approaching law from an essentialist perspective based on the notion of human nature. This notion has been implied many times in non-positivistic approaches, which is precisely the reason why the topic is extremely important. She argues that Human Nature is an obscure concept and therefore cannot be used in order to ground, or justify, the legal order. Moreover, she inquires into the practical consequences and the cultural effects of employing this concept, with special regard to the topic of discrimination.

The third part deals with linguistic analysis and law. Alessio Sardo’s paper, entitled ‘Legal Philosophers, Meaning, and Force’, provides an essential analysis of the difficult relationship between meaning and force: the quandary is whether illocutionary force should also be considered a part of the semantic meaning of a certain utterance or whether it should be claimed that these two features of the speech act are neatly separated. Starting with Alf Ross and Ota Weinberger, Sardo develops several arguments in favor of the first view. The second paper of this section, entitled ‘On Impossibility in Law’, written by Silvia Zorzetto, highlights the different uses of “impossibility” in legal discourse and outlines a typology of its different applications. Zorzetto outlines the linguistic relationships between impossibility, and other central legal and philosophical notions, such as reasonableness, uncertainty, and necessity. The method used by Zorzetto in her analysis is the one first developed in the 1960’s by the founders of the Italian Analytical School (Bobbio and Scarpelli).

Details

Pages
221
ISBN (PDF)
9783653061840
ISBN (ePUB)
9783653960402
ISBN (MOBI)
9783653960396
ISBN (Softcover)
9783631666920
Language
English
Publication date
2015 (October)
Published
Frankfurt am Main, Berlin, Bern, Bruxelles, New York, Oxford, Wien, 2015. 221 pp.

Biographical notes

Luka Burazin (Volume editor) Đorđe Gardašević (Volume editor) Alessio Sardo (Volume editor)

Luka Burazin is Assistant Professor at the University of Zagreb, Faculty of Law, Department of General Theory of Law and State (Croatia). Đorđe Gardašević is Assistant Professor at the University of Zagreb, Faculty of Law, Department of Constitutional Law (Croatia). Alessio Sardo is Postdoctoral Researcher at Bocconi University, Department of Law (Italy).

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