Concepts in Law (eBook)

Jaap C. Hage, Dietmar Von Der Pfordten (Herausgeber)

eBook Download: PDF

2009 | 2009
XV, 129 Seiten
Springer Netherland (Verlag)
978-90-481-2982-9 (ISBN)

Infos

During the last decades, legal theory has focused almost completely on norms, rules and arguments as the constitutive elements of law. Concepts were mostly neglected. The contributions to this volume try to remedy this neglect by elucidating the role concepts play in law from different perspectives. A main aim of this volume is to initiate a debate about concepts in law. Åke Frändberg gives an overview of the many different uses of concepts in law and shows amongst others that concepts in the law should not be confused with the role of concepts in descriptions of the law. Dietmar von der Pfordten criticizes the restriction to norms as parts of the law in contemporary legal theory by questioning what concepts are and what their function is, both in general and in legal conceptual schemes. Giovanni Sartor assumes the inferential analysis of meaning proposed by Alf Ross in his ground breaking paper Tû-tû and addresses the question how possession of a concept, including the rules defining it, is possible without endorsing these rules. Jaap Hage argues that 1. legal status words such as 'owner' have a meaning because they denote things or relations in institutional reality, 2. the meaning of these words consists in this denotation relation, 3. knowledge of this meaning presupposes knowledge of the rules governing these words. Torben Spaak contributes to this volume with an exemplary analysis of one of the most central concepts of the law, namely that of a legal power. Lorenz Kähler discusses the role of concepts in determining the scope of application of legal rules and raises from this perspective the question to what extent legal concept formation can be arbitrary. Ralf Poscher argues that as soon as a concept is used in stating the law, the precise scope of application of this concept has become a legal matter. This means that the use of 'moral' concepts in the law does not automatically lead to a moral import into the law. Dennis Patterson holds that Hart's concept of law can be understood as a so-called 'practice theory' and provides an overview of such a theory.

---

During the last decades, legal theory has focused almost completely on norms, rules and arguments as the constitutive elements of law. Concepts were mostly neglected. The contributions to this volume try to remedy this neglect by elucidating the role concepts play in law from different perspectives. A main aim of this volume is to initiate a debate about concepts in law. Ake Frandberg gives an overview of the many different uses of concepts in law and shows amongst others that concepts in the law should not be confused with the role of concepts in descriptions of the law. Dietmar von der Pfordten criticizes the restriction to norms as parts of the law in contemporary legal theory by questioning what concepts are and what their function is, both in general and in legal conceptual schemes. Giovanni Sartor assumes the inferential analysis of meaning proposed by Alf Ross in his ground breaking paper Tu-tu and addresses the question how possession of a concept, including the rules defining it, is possible without endorsing these rules. Jaap Hage argues that 1. legal status words such as 'owner' have a meaning because they denote things or relations in institutional reality, 2. the meaning of these words consists in this denotation relation, 3. knowledge of this meaning presupposes knowledge of the rules governing these words. Torben Spaak contributes to this volume with an exemplary analysis of one of the most central concepts of the law, namely that of a legal power. Lorenz Kahler discusses the role of concepts in determining the scope of application of legal rules and raises from this perspective the question to what extent legal concept formation can be arbitrary. Ralf Poscher argues that as soon as a concept is used in stating the law, the precise scope of application of this concept has become a legal matter. This means that the use of 'moral' concepts in the law does not automatically lead to a moral import into the law. Dennis Patterson holds thatHart's concept of law can be understood as a so-called 'practice theory' and provides an overview of such a theory.

Inhalt

Contents 6
About the Authors 7
Contributors 9
Introduction 10
An Essay on Legal Concept Formation 15
A ke Fra AEndberg 15
1 Introduction 15
2 A Basic Distinction 16
3 L-Concepts 16
3.1 Different Kinds of L-Concepts 16
3.2 Genuine and Non-genuine L-Concepts 17
3.3 Official and Dogmatic L-Concepts 18
3.4 Rule Constituents and Systematising L-Concepts 19
3.5 System-Dependent and System-Independent L-Concepts 19
4 J-Concepts 21
4.1 Different Kinds of J-Concepts 16
4.2 Technical-Juridical Concepts 22
4.3 Ideological-Juridical J-Concepts 27
5 JL-Terms 28
6 Conclusion 29
About Concepts in Law 31
Dietmar von der Pfordten 31
1 Introduction 31
2 The Importance of Concepts 32
3 What Are Concepts? 33
4 Conceptual Analysis 38
5 How Are Concepts Related to Each Other? 41
6 Concepts in Law25 43
7 What Is More Fundamental: Concepts or Norms/Judgments? 45
8 Conclusion 47
Understanding and Applying Legal Concepts: An Inquiry on Inferential Meaning 48
Giovanni Sartor 48
1 Legal Concepts and Legal Inferences 48
2 RossÌ Theory of Legal Concepts 50
3 Implications of an Inferential Theory of Legal Concepts 55
4 Inferential Meaning and Wrong Inferences 57
5 Inferential Meaning and Substantive Legal Beliefs 58
6 RamseyÌs Elimination and CarnapÌs Conditionalisation of Theoretical Concepts 60
7 Possession of Legal Concepts and Belief in Their Applicability 62
8 Concepts in Legal Comparison and in Legal Doctrine 65
9 Conclusion 66
The Meaning of Legal StatusWords 68
1 ByWay of an Introduction 68
2 T u-tu 70
3 Social, Institutional and Legal Facts 72
4 Criteria Theories of Meaning 75
5 Theories of Direct Reference 77
6 The Meaning of ÎOwnsÌ 78
7 Conclusion 79
Explicating the Concept of Legal Competence 80
1 Introduction 80
2 Concepts 81
3 Explication of Concepts 82
4 Legal Scholars on the Concept of Legal Competence 82
5 A Difficulty: Competence and the Separation of Powers 85
6 To Have Competence 87
7 To Exercise Competence 88
8 Types of Competence 91
9 The Adequacy of the Proposed Explication 93
The Influence of Normative Reasons on the Formation of Legal Concepts 94
1 Introduction 94
2 How Normative Reasons Influence the Formation of Legal Concepts 96
3 Constraints on the Influence of Normative Reasons 103
3.1 Linguistic Constraints 104
3.2 Operational Constraints 105
3.3 Functional Constraints 107
3.4 Benefit Constraints 108
4 Conclusion 109
The Hand of Midas: When Concepts Turn Legal, or Deflating the Hart- Dworkin Debate 111
1 Concepts and Conceptions 112
2 Shared Concepts 113
3 The Midas Quality of the Law 114
4 Legal and Moral Conceptions 116
5 Consequences for Jurisprudence 121
After Conceptual Analysis: The Rise of Practice Theory 128
1 Raz, Authority and Conceptual Analysis 130
2 Dworkinian Constructivism 132
3 Two Approaches to Practice 133
4 Practice Theory 135
5 Regulism and Normativity 138
6 Normativity and the Practice of Law 140

Produkt-Details

• Erscheint lt. Verlag: 24.8.2009
• Reihe/Serie: Law and Philosophy Library
• Reihe/Serie: Law and Philosophy Library
• Zusatzinfo: XV, 129 p.
• Verlagsort: Dordrecht
• Sprache: englisch
• Themenwelt: Geisteswissenschaften ► Philosophie ► Sprachphilosophie
• Themenwelt: Geisteswissenschaften ► Sprach- / Literaturwissenschaft ► Sprachwissenschaft
• Themenwelt: Recht / Steuern ► Allgemeines / Lexika
• Themenwelt: Recht / Steuern ► EU / Internationales Recht
• Themenwelt: Sozialwissenschaften ► Politik / Verwaltung
• Schlagworte: concepts in Law • Dworkin • HART • Hart Dworkin debate • inferential meaning • Law • legal competence • legal concept formation • legal concepts • Legal philosophy • legal status words • legal theory • normative reasoning • tax on wages
• ISBN-10: 90-481-2982-6 / 9048129826
• ISBN-13: 978-90-481-2982-9 / 9789048129829