Ratio Juris

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Table of Contents for Ratio Juris. List of articles from both the latest and EarlyView issues.
Updated: 2 months 6 days ago

Authentic Interpretation

Fri, 2020-04-24 20:00
Abstract

I approach the identification of the principles of legal interpretation through a discussion of an important but largely forgotten strand in our legal heritage: the idea (and at some points in English law, the rule) that the interpretation of legislation is to be done by the lawmaker. The idea that authentic interpretation is interpretation by the lawmaker united the Roman emperors Constantine and Justinian with Bracton, Aquinas, King James I of England, Hobbes, and Bentham. Already in the early 17th century, a new modern approach was emerging in England. The modern approach separates the interpretive power from the legislative power, and allocates the interpretive power to an independent court. I argue that there are some cogent, general considerations in favour of the modern approach. But it is worth identifying the elements of good sense that made it seem that the interpretive power ought to be reserved for the lawmaker. And it is worth identifying the drawbacks in the modern approach; I argue that they are highly relevant to the complex question of how judges ought to interpret legislation.

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A Kantian Interpretation of Kelsen’s Basic Norm

Fri, 2020-04-24 09:04
Abstract

This paper proposes a reading of Kelsen’s basic norm based on Kant’s regulative ideas. I begin by exposing Kant’s conception of the principles of reason. Then I criticize an interpretation of the basic norm along the same lines made by Stanley Paulson. Thirdly I analyze two theses from Hermann Cohen that influenced Kelsen greatly and reinforce my stance on the basic norm. Lastly, I explain how the Kelsenian tenet that the basic norm is the transcendental grounding of the normativity of law can be comprehended based on the role the ideas of reason play in the systematization of knowledge.

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Totemism of the Modern State: On Hans Kelsen’s Attempt to Unmask Legal and Political Fictions and Contain Political Theology

Fri, 2020-04-24 09:04
Abstract

This paper argues that the writings of Hans Kelsen deserve more attention from those engaged in the debate on secularization and political theology. His lifelong struggle with various forms of legal‐political metaphysics is an identifiable thread in many of his writings. Kelsen’s concern with the theological‐political issues found in the theory of the state (Staatslehre) is far from being marginal. Kelsen claims that his theory aims at resolving the traditional dualism of law and state prevailing in the Staatslehre and contributes  to an “uncompromising destruction of one of the most effective ideologies of legitimacy.” Kelsen maintains that the contents of this “ideology of legitimacy” derive from both political metaphysics and the deep‐seated ancient ways of thinking on nature and society. In order to illustrate this thesis, I propose calling this phenomenon “totemism of the modern state.”

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The Potential of Abductive Legal Reasoning

Fri, 2020-04-24 09:04
Abstract

The article describes the potential of abductive legal reasoning as a means of systematically exploring the role of inferences within legal reasoning. Starting out from the structures of abduction as originally presented by Peirce in his four‐horsemen example, the author points to the fact that Peirce actually employed a hypothesis that targeted an institutional fact. Hence the abductive inference has a great potential for categorising new phenomena under norms, yet it is undertheorised within the field of law as compared to other fields of science. The article presents the idea of comparison in the frame of “double abduction” as an important feature of legal reasoning.

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The Political Literacy of Experts

Fri, 2020-04-24 09:04
Ratio Juris, Volume 33, Issue 1, Page 82-97, March 2020.
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The Indigenous Rights State

Fri, 2020-04-24 09:04
Ratio Juris, Volume 33, Issue 1, Page 98-116, March 2020.
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On the Connection between Law and Morality: Some Doubts about Robert Alexy’s View

Fri, 2020-04-24 09:04
Abstract

The paper aims at a critical discussion of Alexy’s conception of the relationship between law and morality, which is known to insist on their necessary connection. After a brief recapitulation of this conception, the author scrutinizes three of its essential elements: the thesis of the dual nature of law, the argument from law’s claim to moral correctness, and the idea of an objective morality. Finally, he sketches his own position which, in some respects, resembles Alexy’s view, but also differs from it in certain relevant points.

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Retraction

Fri, 2020-04-24 09:04
Ratio Juris, Volume 33, Issue 1, Page 117-117, March 2020.
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Retraction

Fri, 2020-04-24 09:04
Ratio Juris, Volume 33, Issue 1, Page 118-118, March 2020.
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Preface to a Debate

Fri, 2020-04-24 09:04
Ratio Juris, Volume 33, Issue 1, Page 3-5, March 2020.
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Issue Information

Fri, 2020-04-24 09:04
Ratio Juris, Volume 33, Issue 1, Page 1-2, March 2020.
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Issue Information

Fri, 2020-04-24 09:04
Ratio Juris, Volume 33, Issue 1, Page 120-122, March 2020.
Categories: Journals