By Philippe Thion
What's a 'rational framework' for laws? even if laws and law is the results of a political technique, can in addition they be the item of theoretical learn? This ebook tackles this question through interpreting the issues which are universal to so much ecu felony structures and the process consists of using the instruments of criminal thought to legislative difficulties ('legisprudence'). whereas conventional felony thought bargains predominantly with the query of the appliance of legislations through a pass judgement on, legisprudence enlarges the scope of analysis to incorporate the construction of legislations via the legislator. The essays released within the quantity boost a brand new variety of insights into the connection among legislative difficulties and criminal idea in a manner that might curiosity criminal students through the international. particularly, the paintings will allure the eye of these concerned with constitutional legislations, ecu legislations, human rights legislation and criminal thought.
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Additional info for Legislation in Context: Essays in Legisprudence (Applied Legal Philosophy)
Example text
The irreversible character of the legitimation chain fits equally well the instrumentalistic position of strong legalism. If values are to be chosen, the risk of conflict increases. The problem becomes apparent once it is clear that the realisation of freedom by the subjects relies on a conception of freedom. Because of the conflicts these choices generate, subjects are required to transfer the capacity of choice itself, that is, their capacity to live according to conceptions of freedom, to the state.
It is only without the Hobbesian anthropological thesis that the ius naturale could make sense from a moral perspective, in that every right corresponds with a duty. Hobbes’ spurious anthropological theory results in some version of the mightis-right thesis, not to say that he adds it to his system to justify his version of the totalitarian state. From the moral perspective, because there corresponds no duty of Y to the right of X, the sovereign will be called upon to frame that duty. The absence of this duty as the main defect of Hobbes’ theory from the moral perspective stems from his account of man’s intrinsically bad nature.
A. ’, in D. ), Rights (Belmont, 1979), p. 23. N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (Westport, CT, 1978). A. Hart, ‘Are There Any Natural Rights’, p. 23. 18 Legislation in Context when attacked, which is his justifiable right to do under the ius naturale thesis. If it is a justification, there must correspond some duty to the Ys not to attack X. If he does attack, X is justified in striking back. However, the anthropological thesis fully scoops out Y’s duty, since everyone is preparing a possible attack.