Concepts in Law

2014

ON PHILOSOPHISING AND THEORISING IN LAW LEGAL PHILOSOPHY, LEGAL THEORY – AND THE FUTURE OF THEORETICAL LEGAL THOUGHT [2006] 11–26: 1. Questioning and Knowing 11 / 2. Law and Philosophy [2.1. Law and Philosophical Wisdom 12 / 2.2. Appearances of Modern Formal Law 14 / 2.3. Differentiation in Complexity 16] 3. Conclusions [3.1. Legal Philosophising Reduced to Discourse-reconstruction 17 / 3.2. The Query for Natural Law Unresolved 19 / 3.3. Positive Law – without Legal Positivism? 23] 4. On What the Stake is 26 // LEGAL ONTOLOGY [1999] 27–30 // LAW AND HISTORY: ON THE HISTORICAL APPROACH TO LAW [1999] 31–35 // LAW AS HISTORY? [1986] 36–47: 1. Understandings of the Term ‘Law’ 36 / 2. Law and History [2.1. Law as Instrument 38 / 2.2. Law as Culture42] 3. Law as History 43 // VALIDITY [1999] 48–61: 1. Notions of Validity 48 / 2. Understandings of Validity 49 / 3. Statism and Dynamism of Law 54 / 4. Validity and the Realm outside the Law 55 / 5. Dissolution of the Notion of Validity? 58 // EX POST FACTO LEGISLATION [1999] 62–65 ON CONCEPTUALISING BY LOGIFYING THE LAW RULE AND/OR NORM: ON THE CONCEPTUALISABILITY AND LOGIFIABILITY OF LAW [2003] 69–78: 1. Rule/Norm 69 / 2. Origins and Contexture 70 / 3. With Varied Denotations 73 / 4. Norms Exclusively in Civil Law Rechtsdogmatik 74 / 5. Ambivalence in Language Use 77 // LEGAL LOGIC AND THE INTERNAL CONTRADICTION OF LAW [2004] 79–86: 1. Legal Logic 79 / 2. The Internal Contradiction of Law 83 // THE QUEST FOR FORMALISM IN LAW: IDEALS OF SYSTEMICITY AND AXIOMATISABILITY BETWEEN UTOPIANISM AND HEURISTIC ASSERTION [1973] 87–123: I. Systemicity [1. Form and Content {1.1. In Arts and Law 88 / 1.2. In German Philosophy 90} 2. Systemicity and Axiomatic Approach {2.1. The Idea of System and the Law-codes 95 / 2.2. Early Modern Times 97 / 2.3. Recent Times 100 / 2.4. Drawbacks in Philosophy104}] II. Axiomatism [3. The Want of Axiomatisability {3.1. From Deductivity to Axiomatisation 105 / 3.2. Futile Approximations at the Most 106 / 3.3. Lack of Deductivity in the Law’s Deep Structure112} 4. The Heuristic Value of an Ideal {4.1. Cases of N/A 113 / 4.2. Cases of Correlation 114} 5. Conclusion: Ideals and the Dialectics of Substantivity 122 // LAW AND ITS DOCTRINAL STUDY (ON LEGAL DOGMATICS) [2006] 124–175: I. The Doctrinal Study of Law [1. Legal Dogmatics in a Science-theoretical Perspective 124 / 2. The Process of Advancing Conceptualisation 128 / 3. Ideality versus Practicality in Legal Systemicity 133 / 4. Conceptualisation, Systematisation, Dogmatisation 135 / 5. Rules and Principles in Law 140 / 6. Correlation between Legal Cultures and Legal Theories 141 / 7. Theoretical and Socio-philosophical Perspectives143] II. Inquiry into the Nature of Doctrinal Studies in Law [a) Legal Dogmatics 147 / b) Non-conceptualised Traditions in Law 149 / c) The Stand of Law and of its Dogmatics 154] III. ‘Law’, ‘Science of Law’, ‘Science’ 157 [1. Critical Positions {a) Ad Mátyás Bódig ‘Doctrinal Study of Law and Jurisprudence’ 158 / b) Ad Tamás Győrfy ‘The Conceptual System of Law and the Dogmatics of Motivations’ 169 / c) Ad Péter Cserne ‘The Doctrinal Study of Law versus Policy’ 172} 2. In an Onto-epistemological Perspective 174] ON FORMS AND SUBSTANCE IN LAW STRUCTURES IN LEGAL SYSTEMS: ARTIFICIALITY, RELATIVITY, AND INTERDEPENDENCY OF STRUCTURING ELEMENTS IN A PRACTICAL (HERMENEUTICAL) CONTEXT [2001] 179–188: 1. Theoretical Background 179 / 2. Foundations of Structuring Challenged 181 / 3. Is there a Structure had? 184 / 4. Structuring as a Meta-construct 186 // GOALS AND MEANS IN LAW [2003] 189–201: 1. The Neutrality of Techniques 189 / 2. John Paul II [2.1. On Personhood, his Goods, and Law 191 / 2.2. On Person, Family, and Nation 196] 3. Artificiality and Antithetical Developments in Law 198 // LAW, ETHICS, ECONOMY: INDEPENDENT PATHS OR SHARED WAYS? [2004] 202–215: 1. “Cynical Acid” in the Foundation of Modern Formal Law 202 / 2. Example: Perspectives for Curing Malpractice in Law 205 / 3. Clash between Europeanism and Americanism 207 / 4. A Search for Reason and Systemicity 211 / 5. Ethics in Economy 213 // TOWARDS AN AUTONOMOUS LEGAL POLICY [1984] 216–221: 1. Relationship between Politics and Law 216 / 2. Legal Policy as a Mediator 218 / 3. Legal Scholarship, Legal Policy, and the Law on Law 219 / 4. Demand for an Autonomous Legal Policy 221 ON PROCESSES OF LAW THE JUDICIAL BLACK-BOX AND THE RULE OF LAW IN THE CONTEXT OF EUROPEAN UNIFICATION AND GLOBALISATION [2008] 225–242: I. Basic Issues in the Understanding of Law [1. Normativism and Legal Reality (Re)Construction 225 / 2. The Insufficiency of the Law Enacted 227 / 3. Duplicity of the Ontological Reconstruction of Judicial Process 227 / 4. The Law as Rule and the Law as Culture 231 / 5. Complementation by the Law’s Self-resolution in Post Modernism 232 / 6. The Metaphoric Nature of the Term ‘Law’ 234 / 7. Added Queries for the European and International Rule of Law 235] II. Questions to be Raised by Legal Arrangements Individually [8. Law as Subsistence and Law as Conventionalisation 236 / 9. Dilemmas of the Law Exhaustively Embodied by Texts, Thoroughly Conceptualised and Logified 237 / 10. Conservatio/novatio, ius strictum / ius aequum, generalisatio/exceptio, and the Moment of Decision 238] III. The Circle of Legal Arrangements to be Involved in the Investigation 240 [11. Cultures and Traditions to be Investigated 241] IV. Purpose and Impact of Investigations [12. The Tasks’ Horizons 241] DOCTRINE AND TECHNIQUE IN LAW [2002] 243–262: 1. Law, Legal Policy and Legal Technique 243 / 2. Formalism and Anti-formalism 245 / 3. Law as Potentiality and Actualisation 246 / 4. Example: Constitutional Adjudication 248 / 5. Legal Imaginability 251 / 6. Linguistic Mediation 254 / 7. Rechtsdogmatik 256 / 8. Clauses and Principles 258 / 9. With Safety Velvets Built in 260 // THEORY AND PRACTICE IN LAW: ON THE MAGICAL ROLE OF LEGAL TECHNIQUE [2006] 263–286: 1. Legal Formalism in a Practical Context 263 / 2. Magic in Law: Culture and Mediation 268 / 3. Legal Conceivability and its Limits 270 / 4. One Langugage, Unlabelled 272 / 5. Formalisation and De-formalisation: Principles as Safety Velves 276 / 6. Within Given Cultural Bounds 278 / 7. Kelsenian Re-interpretation: Law Getting Defined in Society 282 / 8. A Closed/Open Systemic Response 284 // LAW, UNDERSTANDING OF LAW, APPLICATION OF LAW (A SUMMARY OF DEVELOPMENTS IN THIRTY-SIX PARAGRAPHS) [2007] 287–303: I. Classical Heritage [1. Continental Law 287 / 2. Anglo-Saxon Law 291] II. Reality in our Approach to Law [1. As Professional Deontology 293 / 2. In its Theoretical Explanation 294] III. The Complexity of our Legal World Concept [1. The Complexity of Civil Law Mentality 301 / 2. The Complexity of Common Law Mentality 301] IV. With Humans in the Legal Machinery 302 APPENDIX: LEGAL THEORISING: AN UNRECOGNISED NEED FOR PRACTICING THE EUROPEAN LAW [2009] 307–354: 1. Introduction: Queries in European and Global Perspectives 307 / 2. Basic Issues [2.1. Human Refinement 310 / 2.2. The Westphalian Heritage of State Law and International Law 313 / 2.3. The Place of European Law 315] 3. Analogies [3.1. Solar System with Planets 319 / 3.2. Pre-modernity, Modernity, Post-modernity 320] 4. The Structural Pattern of the European Law [4.1. Legal Culture of the European Union 322 / 4.2. Implementing a Grand-System Functioning 328 / 4.3. With Legal Pluralism? 330] 5. Theoretical Model of the Operation of European Law [5.1. Multipolarity with Centripetality and Centrifugality 333 / 5.2. Order, Out of Chaos 336 / 5.3. Practical Continuum in a Standing Flux 342 / 5.4. Activated by Nations 347] 6. Conclusions for Practicing the European Law [6.1. The Ethos of the Tasks 349 / 6.2. For Reaching an Own Future, Thanks to Own Efforts 351] Index of Subjects 355 / Index of Normative Materials 362 / Index 364

2014

Foreword [1994] 1–4 LAW AS PRACTICE QUELQUES QUESTIONS MÉTHODOLOGIQUES DE LA FORMATION DES CONCEPTS EN SCIENCES JURIDIQUES [1970] 7–33: 1. Introduction 7 / 2. La particularité de l’objet des sciences juridiques 8 / 3. La particularité de la méthodologie des sciences juridiques 10 / 4. La particularité de la formation des concepts en sciences juridiques: Quelques problèmes 15 [4.1. Le concept du droit 16 / 4.2. Le concept dogmatique du contenu du droit 21 / 4.3. Le concept de la normativité juridique 23 / 4.4. Le concept des lacunes en droit 24] / 5. La particularité de la formation des concepts en sciencesjuridiques: Quelques conclusions 26 / 6. La formation des concepts en sciences juridiques et la réalité: Conclusion finale 29 / 7. Annexe: Des bases d’une classification possible des définitions en sciences juridiques 31 // GELTUNG DES RECHTS – WIRKSAMKEIT DES RECHTS [1978] 35–42 // MACROSOCIOLOGICAL THEORIES OF LAW: A SURVEY AND APPRAISAL [1983] 43–76: I. Issues of the Macrosociological Theories of Law 46 / II. The Role of the Macrosociological Theories in the Social Science Foundation of Legal Thinking 63 // REFLECTIONS ON LAW AND ITS INNER MORALITY [1984] 77–89: 1. Law and Morals As Two Systems of Norms, and the Inner Morality of Law 77 / 2. Law As A Value Bearer and As A Mere External Indicator 78 / 3. The Inner and External Moral Credit of Legislator 83 / 4. The Inner Morality of Law 86 // THE LAW AND ITS LIMITS [1985] 91–96 LAW AS TECHNIQUE DOMAINE »EXTERNE« ET DOMAINE »INTERNE« EN DROIT [1983] 99–117: 1. Le »juridique« et le »non-juridique« 99 / 2. Domaine »externe« et domaine »interne« en tant que groupes de phénomènes 104 / 3. Domaine »externe« et domaine »interne« en tant que points de références 112 / 4. Conclusion 116 // DIE MINISTERIELLE BEGRÜNDUNG IN RECHTSPHILOSOPHISCHER SICHT [1977] 119–139: I. Die prinzipiellen und geschichtlichen Grundlagen der Herausforderung der ministeriellen Begründungen 120 / II. Die möglichen und erwünschten Funktionen der ministeriellen Begründung im sozialistischen Rechts 128 / III. Die ministerielle Begründung und ihr Wert in der Auslegung derRechtsnormen 132 // THE PREAMBLE: A QUESTION OF JURISPRUDENCE [1970] 141–167: I. The Notion of the Preamble 142 / II. Content and Functions of the Preambles 146 / III. Normativity of the Preamble Content 150 / IV. The Problem of the Justifiability of Preamble-drafting in the Light of Socialist Legal Policy 161 // PRESUMPTION AND FICTION: MEANS OF LEGAL TECHNIQUE [1988] 169–185: I. Presumption 169 [1. In the Judicial Process of Establishing the Facts: praesumptio homini vel facti 170 / 2. In the Normative Definition of the Facts: praesumptio juris tantum 170 / 3. In the Normative Definition of the Facts: praesumptio juris et de jure 171 / 4. In a Possible Theoretical Reconstruction 171] On »Presumption« 172 [1. Function 172 / 2. Presumption and Fiction 173 / 3. Irrelevancy of Epistemological Foundation 173 / 4. The Technique of Presumption 174] II. Fiction 175 [1. In the Linguistic Formation of Legal Norms 175 / 2. In the Judicial Application of Legal Norms 175 / 3. In the Doctrinal Processing of Legal Norms 176 / 4. In the Theoretical Reconstruction of Legal Norms 176 / 5. Approaches to and Understandings of Fiction 177] On »Fiction« 178 [1. History and Understandings 178 / 2. Classification 180 / 3. Law as Fiction 181 / 4. Presumption and Fiction 182] // LEGAL TECHNIQUE [1988] 187–198: I. Legal Technique 187 [1. In the Large Sense 1987/ 2. In Legal Practice 189 / 3. In Legal Science 189 / 4. As a Special Technique 190] II. On Legal Technique [1. Definition and Function 190 / 2. Legal Technique and Legal Cultures 192 / 3. Postulates of Legal Technique in the Cultures of Modem Formal Law 195 {a) The Principle of Consequentiality 195 / b) The Principle of Coherency 195 / c) The Principle of Conceptual Economy 196 / d) The Principle of Non-redundancy 196}] LAW AS LOGIC MODERNE STAATLICHKEIT UND MODERNES FORMALES RECHT [1982] 201–207: 1. Die Klassifizierung als logisches und als gesellschaftswissenschaftliches Verfahren 202 / 2. Typologie der staatlichen und rechtlichen Erscheinungen 202 / 3. Der moderne Staat und das moderne formale Recht: Frage der Zusammenhänge und Entwicklungsalternativen 204 // HETEROGENEITY AND VALIDITY OF LAW: OUTLINES OF AN ONTOLOGICAL RECONSTRUCTION [1986] 209–218 // LEIBNIZ UND DIE FRAGE DER RECHTLICHEN SYSTEMBILDUNG [1973] 219–232: 1. Aktualität von Leibniz 219 / 2. Der Gedanke der universalen mathematischen Methode 221 / 3. Die logischen Konzeption der Rechtswissenschaft 224 / 4. Die geometrische Vision der rechtlichen Systembildung 227 / 5. Das Scheitern der Leibnizschen Idee und seine Lehre 230 // LAW AND ITS APPROACH AS A SYSTEM [1975] 233–255: 1. The Logical Structure of Law as a Historical Product 233 / 2. Tendencies of Formal Rationalization in Legal Development 234 / 3. Historical Development of the Approach to Law as a System 239 / 4. Present State of the Attempts at a Logical Reconstruction of Law and Legal Reasoning 243 / 5. Question of the Axiomatic Conception of Law 248 / 6. Heuristic Value of the Approach to Law as a System 250 // LOGIC OF LAW AND JUDICIAL ACTIVITY: A GAP BETWEEN IDEALS, REALITY AND FUTURE PERSPECTIVES [1982] 258–288: 1. Historical Background 259 / 2. Ideals 264 / 3. Reality 270 / 4. Future Perspectives 277 // KELSEN’S PURE THEORY OF LAW – YESTERDAY, TODAY AND TOMORROW [ms] 289–293, THE NATURE OF THE JUDICIAL APPLICATION OF NORMS: SCIENCE- AND LANGUAGE-PHILOSOPHICAL CONSIDERATIONS [ms] 295–314: 1. Presuppositions 295 / 2. The Context of the Application of Norms 300 [2.1 Actualisation in Concrete Meaning 300 / 2.2 Linguistic Undefinedness 304 / 2.3 Lack of Logical Consequence in the Normative Sphere 308] LAW AS EXPERIENCE ON THE SOCIALLY DETERMINED NATURE OF LEGAL REASONING [1971] 317–374: 1. Interrelation of the Creation and Application of Law 317 / 2. The Socially Determined Nature of the Application of Law 332 / 3. The Socially Determined Nature of Legal Reasoning 337 / 4. The Question of Perspectives 363 // TOWARDS THE ONTOLOGICAL FOUNDATION OF LAW: SOME THESES ON THE BASIS OF LUKÁCS’ ONTOLOGY [1983] 375–390, IS LAW A SYSTEM OF ENACTMENTS? [1984] 391–398: 1. Working Models of Law 391 / 2. Senses of ContExtuality in Law 393 / 3. Jurisprudential Approach and Socio-ontological Approach 394 / 4. Conclusions 396 [4.1. Law as Historical Continuum 396 / 4.2.Law as Open System 396 / 4.3. / Law as Complex Phenomenon with Alternative Strategy 396 / 4.4. Law as an Irreversible Process 397 / 4.5. The Genuinely Societal Character of Law 397] // EUROPEAN INTEGRATION AND THE UNIQUENESS OF NATIONAL LEGAL CULTURES [1992] 399–411: 1. The Philosophical Framework 399 / 2. Law as Tradition 403 / 3. European Integration and the Preservation of the Uniqueness of National Legal Orders 407 // INSTITUTIONS AS SYSTEMS: NOTES ON THE CLOSED SETS, OPEN VISTAS OF DEVELOPMENT, AND TRANSCENDENCY OF INSTITUTIONS AND THEIR CONCEPTUAL REPRESENTATIONS [1991] 413–424: I. A Logic of Systems 413 / II. Ideal Types and Historically Concrete Manifestations 416 / III. Ideal Type As A Normative Ideology 418 / IV.Objectivity and Contingency of Systems 420 / V. Limits and Bonds, ConsEquEntiality and Practicability of a System 423 LAW AS HISTORY FROM LEGAL CUSTOMS TO LEGAL FOLKWAYS [1981] 427–436, ANTHROPOLOGICAL JURISPRUDENCE? LEOPOLD POSPÍŠIL AND THE COMPARATIVE STUDY OF LEGAL CULTURES [1985] 437–457: 1. Rule, Fact and Principle in the Concept of Law 438 [a) Abstract rules 439 / b) Abstracts from actual behaviour 439 / c) Principles Upheld by Legal Decisions 440] 2. Attributes of Law 445 [a) Authority 446 / b) Intention of Universal Application 446 / c) Obligatio 447 / d) Sanction 447] 3. Law and its Social Functional Definition 450 [(1) Law is a Global Phenomenon 451 / (2) Law is a Phenomenon Able to Settle Conflicts of Interests 451 / 3) Law is a Phenomenon Prevailing as the Supreme Controlling Factor 452] 4. Conclusion 454 // LAW AS A SOCIAL ISSUE [1985] 459–475: I. The Social Prestige of Law 459 / II. The Social Nature of Law 463 / III. Law and Language in the Service of Social Mediation 466 (1. Passive Mediation and Active Intervention 468 / 2. The Dilemma of the Mediation of Values 472) // LAW AS HISTORY? [1986] 477–484: 1. Understandings of the Term »Law« 477 / 2. Law and History 478 / 3. Law as History 481 // RECHTSKULTUR – DENKKULTUR: EINFÜHRUNG ZUM THEMA [1988] 485–489 Curriculum Vitae 491 / Bibliography 493 // Index 515 / Index of Normative Materials 523 / Index of Names 525

Gdansk University Press - Wolters Kluwer, 2016

University studies mean the critical reading of texts, and also reflection. The latter should be stimulated by lectures and tutorials, and by discussion. In an attempt to meet the needs of students, we offer here a handbook for the study of the philosophy of law. An innovative idea underlies this handbook – teaching an aspect of law through questions and answers. It is based on a philosophical approach to the study of law. We have proceeded from a position that the subject of philosophy of law may be dealt with in five sections. These are: (I) methodology; (II) people; (III) approaches; (IV) concepts; and (V) hard cases. The contents of our book reflects this division into parts. At the outset, however, we must mention some reservations. First, this handbook considers problems of contemporary philosophy of law, but it is by no means a handbook of the history of philosophy of law. Second, this handbook has a module-based organization. In the future, it will be possible to change these modules as required. Thus, it is an open-ended offering, which will certainly - and this was part of the project from the start - be subject to further changes, supplements, and modifications in subsequent editions.

Századvég Edition

In this volume, I have attempted to develop a comprehensive theory of law. I have based the social theoretical starting points primarily on the theory of Niklas Luhmann and accordingly understood society as a conceptual-systemic construction of comprehensive reality. In contrast to him, however, I have also tried to include the structure of domination in society in my social theoretical synthesis and to take into account the supra-legal determination of the ruling groups at the level of society as a whole in my analysis of law. According to the starting point of Luhmann's theory, on the basis of physical and biological systems, sociality emerges as an independent system level through the mental systems of individuals. Here, only the intellect and its anchors provide the material for stable organisational structures. Reason, anchored in concepts, distinctions, patterns of action and norms, forms the specific material of society. This train of thought goes back to Dilthey and Husserl, but Luhmann combined this train of thought with theories of complex systems, and I have used it in this form in my theoretical work. However, I did not follow Luhmann's theoretical turn, who increasingly oriented his analyses towards an autopoietic concept of systems from the late 1970s onwards. With this turn, the stable structures of social formations were gradually pushed into the background in his writings and, in my opinion, a number of his earlier insights were lost. On the level of social theory, my distancing from Luhmann but my adherence to the insights of his early work is well illustrated by the analyses in the first volume, so that I did not need to go into them in more detail in this volume. My analyses of law in the narrower sense were published in the early 1990s in three volumes (Pokol 1991, 1994, 2000) as well as in smaller studies that unpacked the conceptual systematics of law and the inner layers of the complex legal system step by step. The first studies - still in the late 1980s - were based on Luhmann's theoretical sociology of law and his theory of legal dogmatics and were complemented in particular by the monographs of Karl Larenz and Josef Esser in their exploration of the inner structure of law. It was during this period that the concept of the multi-layered nature of law was formulated in my mind, and it was on this basis that I encountered the growing importance of constitutional fundamental rights in modern legal systems during my study trip to Germany in 1989. At that time, there was no constitutional jurisdiction in Hungary and we were struggling for its recognition during the transition to multi-party democracy, so in my first writings I tried to integrate fundamental rights harmoniously with the other layers of law. It was only when domestic constitutionalism reached a level of activism unparalleled anywhere in the world in the early 1990s that I began to better understand its inherent problems, and from then on, the excesses of fundamental rights at the expense of the other strata of law became more critical in my analyses. A deeper understanding of the internal struggles of American legal theory and the developments of the American "fundamental rights revolution" that threatened the law as a whole eventually shaped my reservations about activist fundamental rights jurisprudence in the course of my later research, which, while recognising the role of fundamental rights, are a constant feature of the analyses in this volume. My first summary of legal theory, entitled "The Theory of Law", was published by Rejtjel Publishing House in 2001, and my follow-up volume, "Sociological Studies in Law", was published by the same publisher in 2003. In writing the present volume, I have added the latter volume to the end of the earlier summary, which is justified by the fact that in my analyses I have not strictly separated the theoretical and sociological aspects of law and have tried to write a sociological theory of law. In this way, the fullness of the legal system can better unfold in this volume. However, in addition to the summary, I have made some changes to the text based on my research since then and added some small sections to the earlier analyses.

Social Science Research Network, 2006

Debates surrounding the concept of law are not new. For a wide variety of reasons and in a wide variety of ways, the meaning of 'law' has long been an important part of Western thought, both within legal scholarship and beyond. The contributors to Concepts of Law are international experts from the fields of comparative law, legal philosophy, and the social sciences. Combining theoretical analyses with case studies, they explore various legal concepts and contexts from diverse national and disciplinary perspectives. Legal and normative pluralism is a theme throughout. Some chapters discuss the development of state law and legal systems. Others wrestle with law’s rhetoric and the potential utility of alternative vocabularies, e.g., 'governance' and ‘governmentality’. Others reveal the rich polyjurality of the present, from the local to the global. The result is a rich picture of both present scholarship on laws and norms and the state of contemporary legal complexity, each crossing traditional boundaries.

Ratio Juris, 2009

's extensive and impressive book, The Law and the Right: A Reappraisal of the Reality That Ought to Be (Pattaro 2005a) (now available in a paperback edition: Pattaro 2007) serves as both an introduction to the multi-volume Treatise of Legal Philosophy and General Jurisprudence (Pattaro 2005b), and as a self-standing examination of an important jurisprudential subject. As an introduction, the volume explains the intellectual background and aims of the Treatise and provides an overview and brief commentary on the themes developed in the later volumes. Ideas contained in the main text of the book are also indicatively related to those to be encountered in later parts of the Treatise. The present review will however focus upon the book's second, and main, purpose in advancing its own distinctive set of theories. The book falls conveniently into four parts. The first examines the idea * I am grateful to Sylvie Delacroix and Enrico Pattaro for their comments on a previous version of this essay. Any remaining errors are my own.

The overarching goal of the paper is to question the distinction between rules and principles. I analyze Robert Alexy's conception of rules and principles and argue that it may be handled formally with the use of defeasible logic rather than classical logic. I further claim that defeasible logic does not provide a sharp logical criterion for distinguishing between rules and principles, and argue that there exist no such non-logical criteria. In conclusion I posit that the distinction in question has only a didactic value.

Artificial Intelligence and Law, 2007

We shall introduce a set of fundamental legal concepts, providing a definition of each of them. This set will include, besides the usual deontic modalities (obligation, prohibition and permission), the following notions: obligative rights (rights related to others' obligations), permissive rights, erga-omnes rights, normative conditionals, liability rights, different kinds of legal powers, potestative rights (rights to produce legal results), resultive declarations (acts intended to produce legal determinations), and sources of the law.