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In this book Joseph Raz develops his views on some of the central questions in practical philosophy: legal, political, and moral. The book provides an overview of Raz's work on jurisprudence and the nature of law in the context of broader questions in the philosophy of practical reason. The book opens with a discussion of methodological issues, focusing on understanding the nature of jurisprudence. It asks how the nature of law can be explained, and how the success of a legal theory can be established. The book then addresses central questions on the nature of law, its relation to morality, the nature and justification of authority, and the nature of legal reasoning. It explains how legitimate law, while being a branch of applied morality, is also a relatively autonomous system, which has the potential to bridge moral differences among its subjects. Raz offers responses to some critical reactions to his theory of authority, adumbrating, and modifying the theory to meet some of them. The final part of the book brings together for the first time Raz's work on the nature of interpretation in law and the humanities. It includes a new essay explaining interpretive pluralism and the possibility of interpretive innovation. Taken together, the essays in the volume offer a valuable introduction for students coming for the first time to Raz's work in the philosophy of law, and an original contribution to many of the current debates in practical philosophy.
Practical Reason and Norms focuses on three problems: In what way are rules normative, and how do they differ from ordinary reasons? What makes normative systems systematic? What distinguishes legal systems, and in what consists their normativity? All three questions are answered by taking reasons as the basic normative concept, and showing the distinctive role reasons have in every case, thus paving the way to a unified account of normativity. Rules are a structure of reasons to perform the required act and an exclusionary reason not to follow some competing reasons. Exclusionary reasons are explained, and used to unlock the secrets of orders, promises, and decisions as well as rules. Games are used to exemplify normative systems. Inevitably, the analysis extends to some aspects of normative discourse, which is truth-apt, but with a diminished assertoric force.
Aus dem Inhalt: A. Aarnio: One Right Answer and the Majority Principle - H. Aoi: Fikentschers Theorie der Fallnorm - J. A. G. Amado: Justicia, Democracia y Validez del Derecho en J. Habermas - O. Ballweg: Phronesis versus Practical Philosophy - J. Bengoetxea: Legal System as a Regulative Ideal - N. Brieskorn: Die Kantische Maxime und die richterliche Rechtsanwendung - D. Buchwald: Rational Legal Justification - E. Bulygin: On Legal Interpretation - N. MacCormick and J. Wroblewski: On Justification and Interpretation - U. Dopfer: Ontologie der sozialen Rolle als Grundlage strafrechtlicher Entscheidungen - V. Frosini: Prolegomena zur Auslegung des Rechts - A. Gangel: Rechtsprechung, Rechtsanwendung und Vernunftsgebrauch - M. P. Golding: Substantive Interpretation in Common Law Elaboration - M. van Hoecke: The Use of Unwritten Legal Principles by Courts - H.-R. Horn: Are there Several Theories of Legal Argumentation? - R. Kevelson: The Confusion of Language in Legal Thought - F. Lachmayer: Visualisierung in der Rechtswissenschaft - P. J. van Niekerk: The Relevance of the Distinction between Legal Principles and Legal Rules - M. Pavcnik: "Rechtsanwendung" oder normative Konkretisierung des Gesetzes? - A. Peczenik: Why shall Legal Reasoning be Coherent? - K. Pleszka: Empirisches Wissen als Grundlage der teleologischen Interpretation - u.a.
Aus dem Inhalt: > I. Plenarvotrage: R. Alexy: Eine diskurstheoretische Konzeption der praktischen Vernunft u O. Weinberger: Der Streit um die praktische Vernunft u II. Offentlicher Vortrag: M. Kriele: Zur Universalitat der Menschenrechte u III. Arbeitsgruppenreferate: J. M. Adeodato: Practical Regularities in Underdeveloped Countries u J. L. Bazan / R. Madrid: Racionalidad y Razonabilidad en el Derecho u V. Black: Putting Power in its Place u J. de Sousa e Brito: Praktische Vernunft und Utilitarismus u A. G. Conte: Deontisch vs. anankastisch u W. Eichhorn: Uber eine verfehlte und doch unverzichtbare Idee der praktischen Vernunft u U. Fazis: Theorie und Ideologie der Postmoderne u F. Galindo: La Teoriaa de los Sistemas Sociales como Teoriaa de la Practica Juriadica u G. den Hartogh: Authority and the Balance of Reasons u V. Held. Feminist Morality and the Role of Law u F. Jacobs: Das Paradigma der praktischen Unvernunft u H. Kaptein: The Morals of Post-Modern Human Rights u J. Llompart: Die praktische Vernunft praktisch betrachtet: die Argumentation mit der Menschenwurde u C. W. Maris: Horror Vacui and the Problems of Modern Legal Philsophy u R. Martin: On G. H. von Wright's Theory of Practical Inference u K. A. Papageorgiou: Kant, ein Rechtsmoralist? Ein Blick auf seine angewandte Ethik u u.a. (Franz Steiner 1993)
This book investigates law's interaction with practical reasons. What difference can legal requirements-e.g. traffic rules, tax laws, or work safety regulations-make to normative reasons relevant to our action? Do they give reasons for action that should be weighed among all other reasons? Or can they, instead, exclude and take the place of some other reasons? The book critically examines some of the existing answers and puts forward an alternative understanding of law's interaction with practical reasons. At the outset, two competing positions are pitted against each other: Joseph Raz's view that (legitimate) legal authorities have pre-emptive force, namely that they give reasons for action that exclude some other reasons; and an antithesis, according to which law-making institutions (even those that meet prerequisites of legitimacy) can at most provide us with reasons that compete in weight with opposing reasons for action. These two positions are examined from several perspectives, such as justified disobedience cases, law's conduct-guiding function in contexts of bounded rationality, and the phenomenology associated with authority. It is found that, although each of the above positions offers insight into the conundrum at hand, both suffer from significant flaws. These observations form the basis on which an alternative position is put forward and defended. According to this position, the existence of a reasonably just and well-functioning legal system constitutes a reason that fits neither into a model of ordinary reasons for action nor into a pre-emptive paradigm-it constitutes a reason to adopt an (overridable) disposition that inclines its possessor towards compliance with the system's requirements.
The concept of practical reason is central to contemporary thought on ethics and the philosophy of law - acting well means acting for good reasons. Explaining this requires several stages. How do reasons relate to actions at all, as incentives and in explanations? What are values, how do they relate to human nature, and how do they enter practical reasoning? How do the concepts of 'right and wrong' fit in, and in what way do they involve questions of mutual trust among human beings? How does our moral freedom - our freedom to form our own moral commitments - relate to our responsibilities to each other? How is this final question transposed into law and legal commitments? This book explores these questions, vital to understanding the nature of law and morality. It presents a clear account of practical reason, valuable to students of moral philosophy and jurisprudence at undergraduate or postgraduate levels. For more advanced scholars it also offers a reinterpretation of Kant's views on moral autonomy and Smith's on self-command, marrying Smith's 'moral sentiments' to Kant's 'categorical imperative' in a novel way. The book concludes and underpins the author's Law, State and Practical Reason series. Taken together the books offer an overarching theory of the nature of law and legal reason, the role of the State, and the nature of moral reason and judgement.
'This is an outline of a coherence theory of law. Its basic ideas are: reasonable support and weighing of reasons. All the rest is commentary.’ These words at the beginning of the preface of this book perfectly indicate what On Law and Reason is about. It is a theory about the nature of the law which emphasises the role of reason in the law and which refuses to limit the role of reason to the application of deductive logic. In 1989, when the first edition of On Law and Reason appeared, this book was ground breaking for several reasons. It provided a rationalistic theory of the law in the language of analytic philosophy and based on a thorough understanding of the results, including technical ones, of analytic philosophy. That was not an obvious combination at the time of the book’s first appearance and still is not. The result is an analytical rigor that is usually associated with positivist theories of the law, combined with a philosophical position that is not natural law in a strict sense, but which shares with it the emphasis on the role of reason in determining what the law is. If only for this rare combination, On Law and Reason still deserves careful study. On Law and Reason also foreshadowed and influenced a development in the field of Legal Logic that would take place in the nineties of the 20th century, namely the development of non-monotonic (‘defeasible’) logics for the analysis of legal reasoning. In the new Introduction to this second edition, this aspect is explored in some more detail.
This book establishes legisprudence, in contrast to jurisprudence, as a legal theory of rational law-making. It suggests that by rejecting the common wisdom about the nature of political law-making, legislation could be improved and streamlined. Using the methods, theoretical insights and tools of current legal theory and philosophy of law in a new way, the book suggests the creation of law by legislators rather than government. Raising new questions and problems of the validity of norms, the book opens a new perspective on legitimacy of norms, their meaning and the structure of the legal system. In distinguishing legitimacy and legitimation of law, the book ventures into the philosophical roots of legal theory and suggests the articulation of a new conception of sovereignty. In shifting the emphasis to the position of the legislator and legislation, this book opens a number of new insights into the relationship between legislative problems and legal theory. Its main claim is that legislation should be justified by the legislator.
“This is a thoughtful look at the shortcomings of the American legal system.” — Booklist “Rosenbaum should be read by every law student in America.” — New York Times Book Review “Mr. Rosenbaum’s complaints about the current legal system are widely shared.” — The New York Sun “[Rosenbaum] cleverly enlivens his discourse with histrionic scenes from novels, films, plays and TV.” — Miami Herald “[Rosenbaum’s] book ought to be required reading in law schools and continuing legal education classes.” — Washington Post