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articles in english
1. Proceedings of the XXII World Congress of Philosophy: Volume > 40
Mihai Badescu Mircea Djuvara: A Representative Value of the Romanian Legal Thinking
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His philosophical thinking was influenced by his legal knowledge, but when reading carefully his articles and papers we can notice a detachment from the philosophical premises in the development of the concepts of law. Like Del Vecchio, Djuvara makes no difference between law and philosophy and therefore the legal philosophy looks like a completion of law, these two concepts being comprehended only by a general, epistemological and philosophical approach; the issues related to the philosophy of law are not only isolated from the big philosophical issues but there are closely related to them so that the philosophy of lawintegrates completely in the general philosophy.
2. Proceedings of the XXII World Congress of Philosophy: Volume > 40
Patrice Canivez The Legislator’s Educative Task In Rousseau’s Political Theory
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In Rousseau’s political theory, the Legislator’s task is to draft the best possible Constitution for a given people. His goal is to maintain the public liberties and to ensure the preservation and prosperity of the State. However, the main problem is “to put law above men” – that is: above the citizens in general and the members of the executive in particular. This paper examines how the Legislator takes up the problem by educating the citizens. The process of education implies the development of reasonable thinking as well as the education of desire. Reasonable thinking is achieved through the formation of the general will. Education of human desire must be understood with respect to the distinction between amour-propre and amour-de-soi. The extension of amour-de-soi to a communityof fellow citizens plays a central role in the formation of the general will and contributes to the development of solidarity among the different social classes. Education of amour-propre plays a role in the development of a national identity. It plays also a role in the political governance of individual desires by means of an administration based on a hierarchy of functions, supervised by public opinion. However, the political governance of desire is challenged by the invisible power of money, which Rousseau tried to neutralize by limiting and slowing down the monetary circulation.
3. Proceedings of the XXII World Congress of Philosophy: Volume > 40
Nuno Manuel Morgadinho dos Santos Coelho Order and Character: an Aristotelian Approach to the Contemporary Crisis of Efficacy and Legitimacy of Law
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Assuming that Aristotelian ethical thought is specifically related to the problem of stability and permanency of Polis, this paper researches the relationship between the human soul and the ethical-political order. Ethical life is described as an on-going process whereby we learn how to think and desire, due to the experience of each particular situation. Ethics shows the human life as a progressive assimilation of ethical-political order in which one becomes the man one is. But, on the other hand, it also shows that any order owes itself to the character of men who take part in it. Interiorising of customs – the purpose of ethical process of personal constitution – forms the man (character is built from the communitarian experience). The virtuous man’s soul is the strongest guarantee againstruination that always threatens Polis. The affirmation of a good life as a happy life in virtue – as the permanent and stable activity according to virtue – assures political order’s stability and the permanence of the Polis. This leads to a reflection about how much Politics owes Ethics: the possibility of the most esteemed idea in Aristotelian political discourse (the permanence of Polis) depends on the ethical process of human soul’s construction. The soul belongs to the order just as the order belongs to the soul. Seen as a virtue, Justice is a certain configuration of the soul (of desiring, thinking and even of feeling) of a man. The abandonment of that incarnate old conception of Justice is strictly related to the contemporary crisis of Law, whose weaknesses in legitimacy and efficacy are evident.
4. Proceedings of the XXII World Congress of Philosophy: Volume > 40
Ion Craiovan On The Philosophy With Juridical Norms
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My paper tackles the generic relationship between philosophy and law, the necessity of applying philosophy to law, the legitimacy and range of such an approach, the configuration of the way in which philosophy has left its mark in the juridical sphere. It surveys, in a chronological order, as well as in terms of their co-existence, the various stages of the relationship between philosophy and law. 1. Although both have been “within the walls”, law secludes itself, relatively speaking, in “the world taken as a whole”, to shape its own identity, to survive as a self-sufficient, distinct technique (F. Geny), or it does it in a doctrinary way (positivism). 2. The representatives of philosophy in the juridical sphere are doing their best to uphold law’s struggle for knowledge, to have it gain recognition as a “science”, renounce its one-sidedness and harmonize with the others. 3. Juridical norms are not untouchable in relation with philosophy. Philosophy may work within juridical norms if it has an affinity with the content of juridical normativeness and respects its specificity. 4. The conclusion I reach is that we must try to cultivate a joint area bringing together philosophy and law, an area wherein the specific features of the two distinct fields reach a consensus for the sake of the human condition – hic et nunc. Philosophy bestows coherence and casts light on “law for man’s sake”, while the philosophically founded law appears to be the “normative project of the human”, a human practice inextricably connected with other types of practice, with man as a whole. The practical way to fulfil this goal, like the goal itself, will always be liable to criticism and improvement, open to debates and various options in a concrete socio-historical context.
5. Proceedings of the XXII World Congress of Philosophy: Volume > 40
Vladimir N. Dubrovsky The Laws of Philosophy: A Contemporary Viewpoint
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Since there is a hierarchy in levels of the organization of the world (in, for example, its social, biological, physical and cosmic aspects) there is a plurality of aspects of scientific philosophy, each of which takes its bearings from this or that level of the organization of the world. This means that when speaking about the laws of philosophy, it is necessary to specify which aspect is being spoken about. In the course of my argument my guideline is the highest, or cosmic world, but I shall also use examples from the physical world. The first law of philosophy of the cosmic world is: each being has a single basis. (It realizes this basis of itself, i.e. it is a primary basis). The first law of the philosophy of the physical world can be stated as follows: all physical being is unique. The second law of philosophy of the cosmic world is: the basis of all being is active to the point of self-excitement. It is manifest and demonstrable of itself, fracturing unity into multiplicity. The second law of the philosophy of the physical world can be stated as follows: all physical being is active and excitable. The third law of the philosophy of the cosmic world is: the basis of all being excites itself unevenly. The third law of philosophy of the physical world can be stated as follows: every physical being changes by a conversion leap. These then are the three laws of the philosophy of the cosmic and physical worlds: uniqueness, activity, and leap. I end by showing how laws of cosmic ethics and a cosmic aesthetics follow from the laws of the philosophy of the cosmic world.
6. Proceedings of the XXII World Congress of Philosophy: Volume > 40
Mayda Hočevar Central and Peripheral Cases and the Moral Point of View in John Finnis´ Theory of Law
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In Finnis´s methodology it is very important to build the appropriate concepts to describe, analyse and define law. As a natural law theorist Finnis goes beyond Hart when considering that the internal point of view is useless for delimiting what law is if one does not define the internal point of view of the internal point of view, that is, the moral point of view. Only from a moral point of view it is possible, according to Finnis, to build an authentic theory of law able not only to describe law but also to morally evaluate it. In Finnis methodology there is also the distinction between the focal and peripheral meanings of a term or concept, whichcorrespond, respectively, to the central and peripheral or secondary cases of and object referred by such term or concept. Because of this distinction Finnis is able to use a wide concept of law avoiding in this way many of the mistakes, which, according to legal positivism, are typical of natural law theories like, for example, confusing legal and moral validity. The importance given by Finnis to the internal point of view and the distinction between central and peripheral cases in order to analyse law is not original but Finnis introduces some particularities, which is what I try to present in this paper.
7. Proceedings of the XXII World Congress of Philosophy: Volume > 40
Vladimir Lobovikov Juridical and Aristotelian Modalities: A New Theory of Their Unity
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In “Elementa Juris Naturalis” (1671) G.W. Leibniz formulated the genius intuition about the fundamental unity of juridical and Aristotelian modalities. Interpreting and explicating this intuition by virtue of the deontic logic G.W. Wright arrived to the conclusion that the unity of modalities in question is not an equivalence relation but an analogy one. However a complement for G.W. Wright’s explication of the intuition of G.W. Leibniz was submitted. This complement was a two-valued algebra of formal-natural-law philosophy of juridical and Aristotelian modalities as moral-legal evaluation-functions determined by one variable. In thepresent paper I submit a binary generalization of the mentioned unary complement. By virtue of this generalization some significant shortcomings of the complement in question are eliminated. The generalization deals with the modalities as moral-legal evaluation-functions determined by two variables.
8. Proceedings of the XXII World Congress of Philosophy: Volume > 40
Friday N. Ndubuisi The Question of Validity of Law
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Law is a powerful force in human civilization. The growth and stability in society are generally linked with the gradual development of a system of legal rules, in addition to the instruments for their regular and effective enforcement. Law can be used to protect or harm the interest of man. This dimension raises the issue of the ‘validity of law’. The legal positivists posit that law is a ‘moral-neutral’ entity, and once it is enacted by the appropriate authority, it cannot be adjudged immoral or unjust, by any standard outside the province of the law in question. The valid law for the legal positivists is law as enacted by the appropriate authority within agiven legal system. The Naturalists think otherwise. Cicero for instance believes that the validity of law is rooted on right reason in agreement with nature. In this paper I am more persuaded by the arguments of the Naturalists. I however present liberally the standpoints of the two opposing schools of thought – The naturalists and the positivists, with emphasis on the works of John Kelsen, Justice Homles, Cicero and Aquinas.
9. Proceedings of the XXII World Congress of Philosophy: Volume > 40
Friday N. Ndubuisi Karl Popper on the Philosophy of Dynamism in Science
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There are a number of contentious issues in the study of philosophy of science. There is the issue of method, there is the issue of subject-matter, there is the issue of truth and certainty as well as the issue of rationality, and the utility of scientific discoveries. Popper demonstrated a lot of interest in the issue of method, stressing ways and means science as a living enterprise could make progress. His theory of conjecture and refutation, or falsifiability is in pursuance of this. He rejected induction as a method of science, insisting that falsifiability is a cardinal factor in any scientific research programme. In this paper I shall examine what Popper consider critical in the advancement of scientific knowledge. That is the task of this paper.
10. Proceedings of the XXII World Congress of Philosophy: Volume > 40
Alexander Nikitin Terrorism / Anti-Terrorism Dialectics and its Impact onto the Principles of International Law and International Relations
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Consequences of world-scale anti-terrorism campaign (which included pre-emptive and coercive regime changes in Afghanistan and Iraq) equaled to or even exceeded consequences of the terrorist challenge itself, and must be analyzed as dialectically interfaced dual factor influencing international politics and law. This dual factor changes basic rules of international relations through wider employment of the principle of pre-emption (retaliation against perceived intentions, rather than against actions), and further blurring of national sovereignty resulting from more coercive interference of the international community into domestic affairs of certain states and societies. Counter-terrorism is philosophically interpreted internationally as reestablishment and strengthening of the monopoly of a state onto use of force, while terrorism is accused for illegal use of force “for private political purposes”. Counter-terrorist practices return previously missing severe coercive sanctions in the international law, and are implemented on behalf of the international community. The problem is to assure both legality and legitimacy of applied measures, especially in situation when major world powers’ interests are split in elaboration of the UN SC decisions authorizing the internationalinterference into sovereign affairs of states. In fact, the very field of counter-terrorism becomes a field for projection and juxtaposing pragmatic interests of world powers. Classical contradiction between international law based on values and principles and pragmatic politics based on interests re-emerges in the area of terrorist challenges/antiterrorist responses. Counter-terrorist practices require as much legal regulation as do terrorist challenges themselves.
11. Proceedings of the XXII World Congress of Philosophy: Volume > 40
Mehmet Tevfik Ozcan The Rule of Law and Human Virtue
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The rule of law is politico-legal realm of the modern society that it balances human gratifications, self-respect and prerequisites of legal order, after dissolution of the traditional society. Apart from our criticisms on the capitalist society there had been an expanding development of civic virtue of the human individual since early beginning of capitalism up to the 1980’ies when idea of self respect and the legal order relatively balanced. But, after neo-liberalism, the development is retrieving to the unbridled individualism, detrimental to the human virtue of all humanity.
12. Proceedings of the XXII World Congress of Philosophy: Volume > 40
Joon Seok Park Rethinking the Contract as Promise
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This paper aims to rethink the reason why nineteenth century common lawyers required a promise to be ‘accepted’. James Gordley expresses his opinion on this matter that they did it just in order to answer the annoying question of why and when a promise was binding. He might be right if he were dealing with the nineteenth century civil lawyers. But he cannot explain why common law of contract still employs the doctrine of consideration and refuses to replace the concept of promise with the notion of offer, despite the doctrine of offer and acceptance. This paper reminds readers that the word promise is rather moral than legal. Thenineteenth century common lawyers wanted not to lose the moral force of this word, so they could not exchange a promise for an offer. What they actually did is not to require a promise to be ‘accepted’ but to require ‘a promise’ to be accepted.
13. Proceedings of the XXII World Congress of Philosophy: Volume > 40
Rodney G. Peffer The U.S. War in Iraq, Just War Theory and Neoconservatism
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Given certain well-known empirical facts–including the Bush II administration’s motivations and its actions initiating the war – the U.S. invasion of Iraq in 2003 (and its continuing war of occupation) is not just (i.e., is not morally justified), on any standard interpretation of Just War Theory criteria for jus ad bellum. Since there was no imminent threat of attack by Iraq against the U.S., the U.S. invasion of Iraq was a Preventative or Merely Precautionary War (which is notrecognized by either Just War Theory or international law as a legitimate basis for initiating a war) rather than a Preemptive War (which may sometimes be justified, if there is a real threat of imminent attack) or a Reactive War (responding to an unjustified attack from an aggressor, which is always justified). Moreover, the neo-conservative program for perpetual U.S. world domination by the weakening of other nations and the invasions of weaker nations for purposes of U.S. economic and geopolitical advantage (behind the facade of “spreading democracy and freedom”) is not morally justified. However, the moral status of the U.S. invasion of Afghanistan is much less clear. Many argue that is was morally justified according to both Just War Theory and international law, given certain well-established empirical facts; particularly, al-Qaeda’s involvement with the events of 9-11 and the Taliban government’s protection of al-Qaeda and its terrorist infrastructure within Afghanistan. On this analysis, the U.S. invasion of Afghanistan was justified as both a Reactive War (responding to an unjustified attack against primarily civilian targets) and a Preemptive War (to try to make sure that al-Qaeda did not have the opportunity to use its infrastructure in Afghanistan to arrange other attacks on civilian targets in the U.S. or other nations). But the cogency of this analysis depends on whether there were any realistic alternatives fordisrupting al-Qaeda and bringing its leaders to justice; and some argue that such alternatives did exist. Moreover, even if U.S. military intervention in Afghanistan was morally justified it is arguable that the amount and type of force used – e.g. intensive, wide-spread bombing campaigns that killed many civilians – were not justified.
14. Proceedings of the XXII World Congress of Philosophy: Volume > 40
Cristian Rojas, Marco Galetta Juridical Interpretation of Venezuelan Legislation
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The objective of this research is to examine the legal interpretation that is applied to the Venezuelan law. To this effect, this work departs from Article 4º of the Venezuelan Civil Code (VCC) that establishes the methods and principles for interpreting Venezuelan law. Similarly, it presents research and explains whatlegal interpretation means and what is interpreted in legal matters.
15. Proceedings of the XXII World Congress of Philosophy: Volume > 40
Henrique Schneider Legalism as Legal Positivism?
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The Rule of law often is considered to be a criterion for legal positivistic thinking. According to this maxim: can the Chinese Legalistic thinking of Shang Yang and Han Fei be considered as a sort of Legal Positivism? There are many positions shared by both, like the idea of a positive law or the binding character of the law despite of person and sympathies or even the concept of the law as a system. There is, however a important difference between them: legal positivism can be best described as “rule of the law” whereas Legalism best fits the idea of “rule by the law”, since there were no secondary rules stating how the legislator had to make the law. On the other hand, the strongest approach to draw a parallel between both is the commonly shared concept of realism of the law as social construction.
16. Proceedings of the XXII World Congress of Philosophy: Volume > 40
Asger Sørensen From Below to Above Rawls on Just War
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From A Theory of Justice to The Law of Peoples Rawls’s liberalism develops from individualism to a kind of communitarianism. This apparently makes him blind to conflicts between the individual and the collective, and the resulting position contributes to change his perspective on just war. From a duty to prevent war by civil disobedience he develops a duty to initiate war because of human right violations, and this must be criticized.
17. Proceedings of the XXII World Congress of Philosophy: Volume > 40
Gülriz Uygur The Relationship between Law and Morality from the Internal Point of View
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This article insists on the relationship between law and morality from the internal point of view. H.L.A. Hart makes distinction between internal and external viewpoints. In the framework of Hart’s approach, it is difficult to imagine the internal point of view as a moral point of view. In fact, the internal point of view illuminates the normative character of rules; it shows that the members of the group accept the rules as standards of behavior for the group as a whole. To explain the internal point of view which includes also moral view, we should leave Hart’s definition. But we may use his definition as accepting and using a rule. For this, we should question the meaning of accepting a rule and using a rule.
18. Proceedings of the XXII World Congress of Philosophy: Volume > 40
Chueh-an Yen Normative Gap, Subjugation and Recognition
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In this paper I will argue that normativity in its pure form is a matter of gap. I will elucidate this idea in three aspects. First, I will suggest that the ‘ought’ is the unique creation of human language to deal with the contingencies and the complexity of the world. And the particular merit of the nature of ‘ought’ or the normativity is not what it positively can offer or do, but what it negatively leaves rooms for, because the ‘ought’ opens up some space for reason or action. Second, every normative system must transform the real human being into its own normative construction of person. I call it the subjugation process. Third, the normativity can show its force more deeply through the escape, resistance and refusal, in another word, through struggle for recognition of the agents. This aspect has certain connection with the critical theory.
articles in german
19. Proceedings of the XXII World Congress of Philosophy: Volume > 40
Veit-Justus Rollmann Rechtskraft als Friedensbedingung –Thomas Hobbes rechtsphilosophischer Ansatz in seiner Schrift Vom Bürger
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Purpose of this paper is to show, that within the Hobbesian Philosophy of law and state the establishment of legal force can be considered to be a conditio sine qua non for a persistent state of peace. In this regard legal force is to be understood not only as a power able to legislate but also to guarantee the abidance of the law by means of coercive power. As a result of this point of view on legal force as a necessary condition for peace and security, arises furthermore the conceptof legal force as condition of culture. This paper traces the central claims of Thomas Hobbes’ highly influential theory of the origination of state and law pointed out in the first chapters of De Cive, a writing that is part of Hobbes Elements of Philosophy. To this aforementioned theory belongs the Hobbesian conception of the so called state of nature as a legal vacuum and a status of absolute freedom of every individual. Furthermore the war of everyone against everyone as a consequence of this absence of legal force and finally the subjects comprehension in the uselessness of absolute freedom which leads to war and instead of this the decision to abandon specific rights and to subrogate those rights to an elected sovereign. The decision to leave the state of nature and hence war and search peace instead which is granted by the legislative and executive power of the sovereign is according to Hobbes the ultimate dictate of reason. Additionally to the first chapters of De Cive I refer to some passages of Hobbes chief work Leviathan.
articles in spanish
20. Proceedings of the XXII World Congress of Philosophy: Volume > 40
Cristian Rojas, Marco Galetta La interpretación jurídica en la legislación venezolana
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The objective of our research is to examine the diverse methods of judicial interpretation, taking off from that established in Article 4 of the Venezuelan Civil Code. We attempt to explain what and how to interpret using the exegetic method of interpretation through an exhaustive analysis of the article, in agreement with Article 22 of the Penal Process Organic Code. Emphasis is placed on the classical methods of legal interpretation: grammatical, logical-systematic, and historical-comparative, among others.