bluuebunny/crossref_metadata_2025 huggingface dataset:
Judges Taken Too Seriously: Professor Dworkin's Views on Jurisprudence*
Authors: TROPER MICHEL
Published: August 2007

Abstract. The author analyses Ronald Dworkin's ideas about legal theory and legal philosophy, with particular regard to metatheoretical and methodological problems. He focuses on the questions of the function and the object of jurisprudence, and on those of the content and method of argumentation of jurisprudence. According to the author, Dworkin's theory is a normative theory, an ideology referred to the judicial practice. Although judges really make law, one can deny that they do. This strategy is the one judges traditionally employ when they say that they are merely applying the law‐giver's intentions or fundamental principles that existed long before the case they have to decide. It is that discourse, not rights, that Dworkin takes seriously.
Philosophy of Law and the Theory of Speech Acts*
Authors: AMSELEK PAUL
Published: August 2007

Abstract. The object of this paper is to throw light on the reciprocal exchanges between legal philosophy and the theory of speech acts (as developed by Austin and Searle). The first part concerns the contributions to legal philosophy made by the theory of speech acts with a view to developing new perspectives. The second part deals with the contributions of legal philosophy to speech act theory.
Friedrich Hayek's Moral Science
Authors: FULLER TIMOTHY
Published: August 2007

Abstract. F. A. Hayek's defense and analysis of the liberal state built on rule of law is both a moral and a scientific enterprise. The author shows that Hayek favors rule of law because it seeks to protect moral agency. It is procedurally rather than morally restrictive because men cannot easily know moral truth. Markets are included in Hayek's analysis not because they produce wealth but because they promote moral agency.
Oakeshott on the Authority of Law
Authors: FRIEDMAN RICHARD B.
Published: August 2007

Abstract. The author explains Michael Oakeshott's distinctive theory of law through an explanation of its notion of authority. He explains the view that modern states are ambiguous, consisting partly of civil associations and partly of enterprise associations. Authority is not a function of people's attitudes to those in power, but exists when a government's action is itself accepted as sufficient reason for unconditional obedience. Authority in this sense cannot exist in enterprise association, commitment to which must be contingent on the fulfillment of purposes common to all participants. But modern states are compulsory associations, different from each. Furthermore, authority could never be justified on a rational choice model, which must always be teleological in character. Because this means there can be no solution to the problem of political obligation, all philosophy can do is describe abstractly the Rule of Law state which does reconcile authority and liberty.
On the Relationship Between Law and Morality
Authors: COLEMAN JULES
Published: August 2007

Abstract. Instead of being embarrassed and uneasy about the implications of the separation thesis, positivists should welcome the fact that they cannot account for the obligatoriness of law. The rule of recognition is only a social rule and introduces no grounds for obligation.
Law as Convention
Authors: REYNOLDS NOEL B.
Published: August 2007

Abstract. The widely recognized impasse in legal theory, which requires an account of law as “both a social fact and a framework of reasons for action” has been most interestingly addressed in recent years by writers characterizing law as convention in the sense of a solution to a game theoretical “coordination problem.” As critics have neutralized most of these proposals, the author advances an account of conventionalism, drawing on economic and sociological theory, which he claims makes the bridge between positivist and naturalist theories of law without compromising the basic insights of either. The result is a unified theory of law, politics and society.
Discourse Ethics and the Legitimacy of Law
Authors: TUORI KAARLO
Published: August 2007

Abstract. The reconstructive theory of the procedural legitimacy of modern law developed on the basis of the theory of discourse ethics has limited itself solely to the deontological, moral‐normative aspects of the validity claims of legal norms and judgments. However, teleological and axiological aspects are also intertwined with legal validity claims and with the procedures in which legal norms and judgments are produced. The discursive‐procedural concept of legitimacy seems to require as its support, instead of the theory of discourse ethics, a general theory of practical discourses or, more generally, of rational collective will‐formation.
A Normative Conception of Coherence for a Discursive Theory of Legal Justification
Authors: GÜNTHER KLAUS
Published: August 2007

Abstract. The author introduces a normative conception of coherence, derived from a pragmatic interpretation of the application of norms to concrete cases. A distinction is made between the justification of a norm and its application. In the case of moral norms, justification and application can be analysed as two different discursive procedures which give rise to different aspects of the principle of impartiality. Impartial justification requires a procedure by which all interests concerned are taken into account whereas impartial application requires a procedure where all features of a situation are considered. The complete description of a concrete case makes necessary a coherent interpretation of all the valid norms which are prima facie applicable. This requirement of an ideal coherent system of norms is restricted to interpretive “paradigms” in the case of legal norms, because it is necessary to produce singular judgments under the restrictive conditions of scarce time and incomplete knowledge.
Efficiency, Effectiveness and Legitimation: Criteria for the Evaluation of Norms
Authors: UUSITALO LIISA
Published: August 2007

Abstract. The paper deals with the mutual interest of both economic and social theory in exploring a broader concept of the rational and in finding validity claims for rational discourse. Efficiency and effectiveness are discussed as possible validity criteria in evaluating norms in practical discussion. In addition to the problem of defining validity criteria for argumentation on norms and social choices, a major difficulty arises from the lack of a legitimate reflective centre in society which could integrate behaviour with norms and metapreferences. As ways of motivating cooperative, collective action, both norm commitment and self‐interest should be appealed to.
On the Legitimacy of Law: A Conceptual Point of View*
Authors: AARNIO AULIS
Published: August 2007

Abstract. The author outlines a conceptually oriented rational reconstruction of crisis tendencies in modern law. The connection between problems of legitimacy and the notion of rationality is emphasized and topics involving both the theory of communicative rationality and the theory of practical reasoning (especially in law) are discussed. The author concludes that a theory transcending the traditional approaches is needed. Otherwise, we shall not be able to face the questions of jurisprudence in the future, especially as regards an assessment of the relations between law and morality, between law and society and finally between law, legitimacy and democracy.
Aristotle's Forms of Justice
Authors: WEINRIB ERNEST J.
Published: August 2007

Abstract. In Aristotle's account, corrective and distributive justice are not (as they are today) particular substantive ideals, but are rather the formal patterns that inhere in interactions and in the legal arrangements that regulate them. Corrective and distributive justice are the structures of ordering internal to transactions and distributions, respectively. The Aristotelian. forms of justice thus constitute the rationality immanent to the relation ships of mutually external beings. This article stresses Aristotle's formalism, contrasting it to modem instrumental conceptions of legal rationality, and defending it against Kelsen's allegations of emptiness. The article concludes with the suggestion that corrective justice, as the conceptual pattern that makes private law what it is, can be considered the formal and final cause of private law.
G. A. Cohen's Conception of Law: A Critique*
Authors: KRAMER MATTHEW H.
Published: August 2007

This note will challenge G. A. Cohen's view of the interaction between legal systems and economic structures; such interaction raises the so‐called problem of legality, which Cohen sets out to solve in the eighth chapter of Karl Marx's Theory of History (Cohen 1978, 216–47). In the course of this note, we shall interrogate the presumed rigor of Cohen's theory of base/superstructure relations, to which his understanding of law is central. His approach will not be simply destroyed, but will be resituated in a network of problems that can highlight a certain fissure between his aspirations and his performance.
The Concept of Jurisprudence*
Authors: ALEXY ROBERT , DREIER RALF
Published: August 2007

Abstract. The first part of this article contains (i) considerations as to the relationship between jurisprudence and legal dogmatics, legal philosophy, and sociology of law; (ii) considerations about the status of jurisprudence both as a meta‐ and an object‐theory. These lead to the suggestion that jurisprudence should be defined as a general juristic theory of law and legal science. In the second part, the character and elements of this definition are explained systematically. The article's main thesis is that jurisprudence is not distinguished from legal philosophy and sociology of law by its subject or its method, but by the specifically juristic research aspect or perspective it is based upon.
Logic Without Truth
Authors: ALCHOURRON CARLOS E. , MARTINO ANTONIO A.
Published: August 2007

Abstract. Between the two horns of Jørgensen's dilemma, the authors opt for that according to which logic deals not only with truth and falsity but also with those concepts not possessing this semantic reference. Notwithstanding the “descriptive” prejudice, deontic logic has gained validity among modal logics. The technical foundation proposed consists in an abstract characterization of logical consequence. By identifying in the abstract notion of consequence the primitive from which to begin, it is possible to define the connectives ‐ even those of obligation ‐ by means of the rules of introduction or elimination in a context of derivation.
Legal Concepts in a Natural Language Based Expert System*
Authors: LEHMANN HUBERT
Published: August 2007

Abstract. A new approach to the formalization of concepts used in legal reasoning such as obligation and cause is presented. The formalization is based on the linguistic use of the concepts both in legal language and in ordinary language, and has been motivated by work on a legal expert system with a natural language interface. Particularly for the concept of obligation this yields quite different results from those obtained by the usual approach of deontic logic: So‐called paradoxes are avoided, quantification over obligations becomes possible, no restriction to a “single‐agent system” is required, and collisions of obligations can be formulated.
The Concept of Coherence and Its Significance for Discursive Rationality
Authors: ALEXY ROBERT , PECZENIK ALEKSANDER
Published: August 2007

Abstract. The main idea or the concept of coherence can be expressed in the following way: The more the statements belonging to a given theory approximate a perfect supportive structure, the more coherent the theory. The degree of perfection of a supportive structure depends on the degree to which the following criteria of coherence are fulfilled: (1) the greatest possible number of supported statements belonging to the theory in question; (2) the greatest possible length of chains of reasons belonging to it; (3) the greatest possible number of strongly supported statements belonging to the theory; (4) the greatest possible number of connections between various supportive chains belonging to the theory; (5) the greatest possible number of preference relations between various principles belonging to it; (6) the greatest possible number and complexity of reciprocal supportive relations between various statements belonging to the theory; (7) the greatest possible number of universal statements belonging to the theory; the greatest possible number of general concepts belonging to it; the highest possible degree of generality of concepts implemented within it; the greatest possible number of resemblances between concepts used within it; (8) the greatest possible number of conceptual cross‐connections between various theories; (9) the greatest possible number of cases covered by the theory; and (10) the greatest possible number of fields of life covered by the theory.
The Epistemological Moral Relevance of Democracy*
Authors: NINO CARLOS S.
Published: August 2007

Abstract. The author deals with one aspect of the justification of governmental action and its product (the law). He focuses on the authoritative character of legal rule, analyzing the apparent capacity of governments to produce reasons for action not grounded on substantive moral considerations. The assumption of that capacity seems necessary in order to establish a general moral obligation to obey a government irrespective of the actions required. This question is faced in connection with the thesis that only a particular form of government, democracy, is morally justified insofar as it rests on legal rules issued by a legitimate source.
H. L. A. Hart on Legal Obligation*
Authors: OLADOSU ADEJARE
Published: August 2007

Abstract.

The author discusses Hart's concept of legal obligation, especially his contention that there is an obligation to obey the law which is peculiarly legal, i.e., non‐moral. This view is held to be mistaken. What is denied is that legal rules, merely by their being issued, offer a justification for the use of coercion to ensure compliance with them. Although moral and other social (customary) rules are considered self‐justifying, that is not the case of legal rules. Any analogy between these two types of rules in justifying their implementation by force is deemed wrong.**
The Logic of Norms Founded on Descriptive Language*
Authors: WEINBERGER OTA
Published: August 2007

Abstract.

The author gives a short survey of the different methods which have been proposed to deal with the logic of norm sentences on the basis of logical systems of descriptive language: deontic logic, logic of norms as an isomorphism of propositional logic, restriction of logical relations to the propositional content of norm sentences, transformation of norms into sanction sentences, preference interpretation of norm sentences, double interpretation of ought‐sentences and the use of the descriptive interpretation as a tool for establishing the logic of norms, proposition about norms in the place of normative logic, the logic of admissible worlds, postulates addressed to the rational lawgiver and technical ought as a substitute for nor‐mological considerations. A critical analysis of these attempts may prove them inappropriate, but it is not sufficient to prove the impossibility of any method of founding normative logic on systems of a descriptive language. Therefore the author adds a general consideration on the chances of such approaches.
Ought‐Sentences and the Juristic Description of Rules
Authors: GUASTINI RICCARDO
Published: August 2007

Abstract.

According to the normative theory of legal science, juristic ought‐sentences describe rules, since legal science just deals with rules, and rules cannot be described but by means of ought‐sentences. The author challenges this view. Two different constructions of “describing rules” are proposed: Namely, either interpreting or stating the validity of rules. “Interpreting rules,” in its turn, can be understood in three different senses: listing all the possible meanings of rule‐formulations, reporting the different interpretations a rule‐formulation has in fact received by courts, or ascribing meaning to rule‐formulations. However, the author argues that ought‐sentences are not the proper tools to accomplish such tasks. At the same time, juristic ought‐sentences cannot be understood as validity statements, since they neither mention any rule whatsoever, nor include the term “valid.” Further, if validity‐statements were ought‐sentences, their logical behaviour would reflect the logic of rules themselves. However, as the late Kelsen argued, things do not run this way, since two inconsistent ought‐sentences, if understood as validity statements, can paradoxically both be true, as well as both false. Hence, validity‐statements cannot be reduced to ought‐sentences iterating the rules which they (are supposed to) refer to.
Practical Logic and the Analysis of Legal Language*
Authors: MARÍN RAFAEL HERNÁNDEZ
Published: August 2007

Abstract.

One of the theses of the present work is that, at the strictly logical and methodological level, practical logic has neither made, nor can it make any contribution to the philosophy of law, since none of the three branches of practical logic that have been taken into account, namely, the logic of norms, deontic logic and legal logic, seems to be theoretically possible. The contribution of practical logic to the analysis of legal language is assessed in terms of both the instruments of analysis elaborated by practical logic, the artificial languages, and the results obtained in two capital subjects, the negations of norms and the permissions.
Normative Systems, Permission and Deontic Logic*
Authors: OPA?EK KAZIMIERZ , WOLEŃSKI JAN
Published: August 2007

Abstract.

The authors concentrate on the analysis of the concept of permission. After a general account of differing concepts of permission both with regard to different legal theories and to different legal ideologies, they argue in favour of a “radical” imperativism which leaves no place for permissive norms. Thus, in contrast with the logic of normative language (LNL) purported by Alchourrón and Bulygin, the authors figure out a system of deontic logic ‐ supplemented by devices of the possible world semantics ‐ according to which a normative system (N) is conceived as a set of logical consequences of a certain finite set of basic obligations and no room is left either for the concept of weak permission or for the concept of strong permission. Finally the authors raise some criticisms concerning the view maintained by Alchourron and Bulygin on strong permission.*
Unger's Advocates: Assessing the Possibilities for Law Practice as a Transformative Vocation
Authors: SHELLEDY DAVID , WINTGENS LUC J.
Published: August 2007

Abstract.

This article focuses on a critical interpretation of the work of Unger. It is argued that Unger's view is less revolutionary than he depicts it and that American law often develops as Unger describes it, though this is absolutely no revolution. The authors further show what the possibilities and the limits of a transformative vocation at the bar can be.
What's New and Useful in Law Analysis Technology?*
Authors: NAGEL STUART S.
Published: August 2007

Abstract

Decision‐aiding software is probably the most important technological innovation from the perspective of lawyer decision‐making, as contrasted to efficient office management. That kind of technological breakthrough can be helpful to lawyers in negotiating settlements favorable to their clients without expensive litigation. The technology makes use of benefit‐cost analysis, multi‐criteria decision analysis, spreadsheet software, and especially super‐optimizing analysis whereby plaintiffs, defendants, and other parties can all come out ahead of their best initial expectations simultaneously. Decision‐aiding software can also be helpful to lawyers in evaluating alternative precedents, statutes, regulations, and other legal policies to arrive at versions favorable to their clients without an expensive adoption campaign.
Argumentation and Interpretation in Law
Authors: MacCORMICK NEIL
Published: August 2007

Abstract

The author proceeds from a brief elucidation of the concept “argumentation” through a more extended account of substantive reasons in pure practical argumentation and of institutional argumentation applying “authority reasons” as grounds for legal decisions to an initial account of the nature and place of legal interpretative reasoning. Then he explores the three main categories of interpretative arguments, linguistic arguments, systemic arguments and teleological/deontological arguments; and he examines the problem of conflicts of interpretation and their resolution. His conclusion is that legal argumentation is only partly autonomous since it has to be embedded within widerelements of practical argumentation.
Critical Remarks on Robert Alexy's “Special‐Case Thesis”*
Authors: GÜNTHER KLAUS
Published: August 2007

Abstract

In this paper the author criticizes the way Robert Alexy reconstructs the relationship between legal and practical reasoning. The core of Alexy's argumentation (Alexy 1978) is considered the claim that legal argumentation is a “special case” of general practical discourse. In order to question this claim, the author analyzes three different types of argument: (1) that legal reasoning is needed by general practical discourse itself, (2) that there are similarities between legal argumentation and general practical discourse, (3) that there is a correspondence between certain types of argument in general practical discourse and in legal argumentation.**
Normative Institutionalism and Normative Realism. A Comparison*
Authors: FARALLI CARLA
Published: August 2007

Abstract

MacCormick and Weinberger's normative institutionalism, or neo‐institutionalist theory, is propounded as “a socially realistic development of normativism.” This theory blends normativism and realism and represents the coherent outcome of two components of each author's thought: normativism from the standpoint of legal theory; neo‐empiricism from the standpoint of philosophy generally. Scandinavian legal realism, or normative realism, is the only school of jurisprudence that can be understood as a direct offspring of one of the philosophical currents (i.e., the Uppsala school) belonging to contemporary neo‐empiricism. This is why it inevitably becomes a touchstone for those legal theories – like MacCormick and Weinberger's neo‐institutionalist theory–which are not direct offshoots, but owe much to the principles and methods of neo‐empiricism.
Continental Normativism and Its British Counterpart: How Different Are They?*
Authors: PAULSON STANLEY L.
Published: August 2007

Abstract

The separability thesis claims that the concept of law can be explicated independently of morality, the normativity thesis, that it can be explicated independently of fact. Continental normativism, prominent above all in the work of Hans Kelsen, may be characterized in terms of the coupling of these theses. Like Kelsen, H. L. A. Hart is a proponent of the separability thesis. And–a leitmotiv–both theorists reject reductive legal positivism. They do not, however, reject it for the same reasons. Kelsen's reason, in a word, is the normativity thesis. Hart, however, grounds his theory in social fact. In place of the reductive thesis of the legal positivist tradition, and in sharp contrast to Kelsen's normativity thesis, Hart defends a non‐reductive version of what the author terms the facticity thesis.
Positive Law and Systemic Legitimacy: A Comment on Hart and Habermas*
Authors: ORTS ERIC W.
Published: August 2007

Abstract

The author revisits H. L. A. Hart's theory of positive law and argues for a major qualification to the thesis of the separation of law and morality based on a concept of systemic legitimacy derived from the social theory of Jurgen Habermas. He argues that standards for assessing the degree of systemic legitimacy in modern legal systems can develop through reflective exercise of “critical legality,” a concept coined to parallel Hart's “critical morality,” and an expanded understanding of the “external” and “internal” perspectives on legal systems. Following Habermas, he argues that modern positive law must retain systemic legitimacy. After suggesting criteria for measuring systemic legitimacy, the author concludes that the concept provides a useful approach to contemporary problems of “lawless” regimes and “law's imperialism.”
Rules of Power and the Power of Rules
Authors: SHINER ROGER A.
Published: August 2007

Abstract

The paper describes at length and then discusses critically Frederick Schauer's analysis of rules in his recent book Playing By the RuZes. For most of the book Schauer discusses rules in general, and only at the end talks about legal rules in particular. The chief message of Schauer's analysis is that rules permit, and even constitute, a particular kind of decision‐making, one that quite deliberately insulates the decision‐taker from considerations of what would be in the circumstances the best justified decision to take. Rules are thus for Schauer devices for the allocation of decision‐making power: The effect of A delegating to B the power to decide by a set of rules devised by A is that A retains much control over B 's decision‐making. Schauer canvasses the claims of what he calls “presumptive positivism” to be a theory of law which embodies such a view of legal rules. In his criticism, the author compares Schauer's view with Joseph Raz's notion of legal rules as exclusionary reasons. The author then compares “presumptive positivism” with some other recent versions of positivism and the idea of rules as devices for the allocation of power with theories of law in the Critical Legal Studies movement.
A Humanist Foundation for Restitution
Authors: MACKAY ROBERT E.
Published: August 2007

Abstract

This paper makes a case for an ethical underpinning for restorative justice. This approach is developed from a neo‐Aristotelian perspective. It adapts the conceptual framework of Alasdair MacIntyre for the articulation and resolution of epi‐stemological crises in traditions of enquiry, to the task of providing a critical and analytic framework for considering the crisis of rationale and practice in the contemporary criminal justice‐penal archipelago. The author argues that Restitution, conceived in neo‐Aristotelian terms, provides a resolution of that crisis. Finally, he foreshadows a debate to be had between the neo‐Aristotelian position, and that of Critical Theory on the issue of legitimizing Restitution.
David Dyzenhaus and the Holy Grail
Authors: SHINER ROGER A.
Published: August 2007

Abstract

In his book Hard Cases in Wicked Legal Systems David Dyzenhaus aims to provide a cogent refutation of legal positivism, and thus to settle a very old dispute in jurisprudence. His claim is that the consequences for practice and for morality if judges adopt positivist ideas in a wicked legal system are unacceptable. He discusses the South African legal system as a case in point. I argue that this claim is not secured. Dyzenhaus has three arguments for his view. The first is that positivism cannot account for legal principles, and legal principles are the key source of morally acceptable adjudication. I show that his argument does not go through for sophisticated positivist accounts of “principles” such as those of J. Raz and D. N. MacCormick. Dyzenhaus's second argument claims to find a pragmatic contradiction in positivism, between the belief in judicial discretion and the belief in a commitment to legislative sources as binding fact. I argue that there is no such commitment in a form that supports Dyzenhaus's theory. His final argument is that wicked legal systems are contrary to the very idea of law and legality. I argue that a strong doctrine of deference to legislative authority cannot be bad in itself: It can only be bad relative to a certain content to legislation. Thus Dyzenhaus's claim begs the question against positivism.
Suum Cuique Tribuere. Some Reflections on Law, Freedom and Justice
Authors: AARNIO AULIS , PECZENIK ALEKSANDER
Published: August 2007

Abstract. Moral and theoretical deficiencies of the main foundation strategies in social and political systems (Social Engineering, Foundationalism and Invisible Hand theories) are explained by the necessity of a synthesis of different kinds of rationality, i.e., goal‐rationality, norm‐rationality and rightness and weighing rationality. The anthropological basis of the theory is a distinction between homo finalis and homo socialis. At the institutional level, this conception leads to a synthesis of the rule of law and the welfare state. At the political level, this implies a retonsideration of the principles of democracy and political planning.
The Use of Unwritten Legal Principles by Courts*
Authors: HOECKE MARK VAN
Published: August 2007

Abstract.

I argue that one can distinguish two types of unwritten legal principles as applied by courts (in Europe). On the one hand, what are called “structural principles,” which are induced, or at least pretended to be induced, from the written law. On the other hand, what are called “ideological principles,” which are not induced from the actual legal system, but refer to current dominant beliefs in society as to morals, politics or other non legal ideologies. It is argued that the distinction between structural legal principles and ideological legal principles could be an important element for the elaboration of a legal principle theory, as both these types of principles meet a different need and play a different role in legal practice. Structural legal principles primarily meet the need for a new ius commune, in order to achieve the coherence and the completeness of the legal system, whereas ideological legal principles, just like the human rights, meet a revived demand for an ethical framework for the law.
Normological Inferences and the Generation of Legal Norms
Authors: WEINBERGER OTA
Published: August 2007

Abstract.

This paper is an answer to Mazzarese (1993) in which the author argues that Kelsen's normological scepticism is a consequence of his theory of legal dynamics and of his views on the relation between higher and lower norms. The author rejects this tenet and reasserts his opinion that there is an essential break between the classical Pure Theory of Law and Kelsen's late doctrine. Therefore an inquiry is justified whether the theses and concepts of the classical Pure Theory are compatible with normological scepticism in Kelsen (1979). Mazzarese's comments on neo‐institutionalist views on legal validity are based on a misinterpretation of this conception.
Sovereignty and International Order
Authors: MAY THOMAS
Published: August 2007

Abstract.

Sovereignty may be threatened by obligations and relations with other nations, states or powers from either an “internal” or “external” perspective. In this paper, I argue that these obligations and relationships may be compatible with a state's sovereignty if we understand the proper nature of authoritative relationships. This requires a model of “rational authority” which places emphasis on the first‐person perspective of the subjects to authority.
Kant and the Transnational Order: Towards a European Community Jurisprudence*
Authors: WARD IAN
Published: August 2007

Abstract.

This paper seeks to suggest a jurisprudential grounding for the European Community, and seeks to do so by using a specifically Kantian philosophy of law. Kant's observations on the nature of transnational orders, like so much of his political theory, have tended to be overlooked. To do so is to overlook one of the great political and jurisprudential treasures in modern western thought. It will be suggested that a proper understanding of a Kantian normative order, and the application of such a model to the European Community will serve to dispel much of the confusion and sometimes near histrionic commentaries which have characterised recent attempts to understand the jurisprudence of the Community.
Universal Legal Concepts? A Criticism of “General” Legal Theory
Authors: BARBERIS MAURO
Published: August 2007

Abstract.General theory of law (general jurisprudence,allgemeine Rechtslehre) has often claimed to deal with general or universal concepts, i.e., concepts which are deemed to be common to any legal system whatsoever. At any rate, this is the classic determination of such a field of study as provided by John Austin in the nineteenth century—a determination, however, which deserves careful analysis. In what sense, indeed, can one assert that some legal concepts are common to different legal systems? And, above all, in what sense can one assert that some concepts are common to different languages and cultures? My paper sets out to discuss such questions—although, obviously, they are too complicated to be answered in a single paper. The first section reconstructs the Austinian argument for general jurisprudence by placing it in its historical context. The second section tries to apply to legal concepts some suggestions derived from the contemporary debate on conceptual relativism. The third section, returning to the Austinian problem, comes to the following conclusion: Even if conceptual relativism were true and there were no general or universal legal concepts, this would not invalidate in any way the didactic and scientific value of (general) theory of law.
The Complexity of Justice (a Challenge to the Twenty‐First Century)
Authors: HELLER AGNES
Published: August 2007

Abstract. The tension between liberalism and democracy is very likely to become one of the major confliction fields of the early twenty‐first century. Those conflicts include the redefinition of the relationship between ethics, morality, and law—in all the three spheres of modernity: the intimate, the private and the public. It turns out that all three aspects of the relationship once described by Hegel (law, morality and Sittlichkeit) remain equally decisive to maintain or regain the balance of freedoms in the modern world. There is no justice, nor is there equity—unless this balance is maintained. Law—in this context—is not just the defender of the “universal” aspect, but preferably also that of the balance of freedoms (both through interfering, and through the denial of interference in “ethical life”).
Legal Rights and Moral Rights: Old Questions and New Problems*
Authors: SEN AMARTYA
Published: August 2007

Abstract.The author examines the discipline of moral rights and in particular the need to embed them in a consequential system. He argues that the widely held opinion that independence from consequential evaluation is the right way of guaranteeing individual freedom is based on an inadequate appraisal of the role of moral rights in the social context. In this perspective he examines two specific cases: (1) elementary political and civil rights, and (2) the reproductive rights of women in the context of poor countries with the problem of fast population growth. He argues that a coherent goal‐rights system which accommodates rights among others goals, can overcome the non‐consequential arguments and justify the force of moral rights fully within a consequentiality perspective.
Transitional Regimes and the Rule of Law
Authors: GOLDING MARTIN P.
Published: August 2007

Abstract. This paper seeks to establish a connection between the existence of a legal system and the ideal of the rule of law. Its point of departure is the phenomenon of a transitional regime that is attempting to restore or institute the rule of law. Lon Fuller's formulation of the canons of the rule of law as an internal morality of law is expounded as well as his notion of legal pathology as symptomatic of departure from the canons' requirements. The existence of a legal system, it is argued, is a matter of degree, covariant with the degree to which the rule of law is realized. Problems inherent to the implementation of the rule of law are examined, such as the effect of the passage of time on reasonable expectations. While legal pathology is always a matter of degree, police states are shown to suffer seriously from it. Among the examples discussed are Nazi Germany and Communist East Germany, though it is granted that there are moral differences between them. Finally, a response is made to some contemporary critiques of the rule of law.
Segregation and Supply: Preferences and Plans among ‘Self‐Made’ Women
Authors: Devine Fiona
Published: August 2007

Recently, Hakim (1991) has argued that women's choices and decisions are a key determinant of labour market behaviour and patterns of gender segregation. Drawing on a case study of women scientists and engineers, this paper examines the extent to which horizontal segregation is the product of preference and planning. The evidence suggests that the women's choices were a significant factor in entering the technical professions. However, from predominantly middle‐class families, coming from single‐sex schools, the women were able to specialize in technical subjects and to withstand pressure to change their decisions. Their subsequent occupational positions were the product of these educational choices rather than well‐formulated career plans. Their involvement in their employers' schools/industry liaison policies highlighted that the majority of young women do not consider professional science and engineering as an appropriate job for them. The findings of the study illustrate that preferences and plans are made in ‘gendered’ social contexts in which women face different opportunities and constraints in exercising their decisions. While the study of women's attitudes and behaviour should not be neglected, sociologists should be wary of voluntaristic accounts of gender segregation which rely on rationalistic notions of labour market behaviour.
Feminism, Management and Self‐Actualization
Authors: Cullen Dallas
Published: August 2007

Abraham Maslow's hierarchy of needs has had an enduring influence on management theory, both in and of itself and in past and present theories of employee motivation and performance. However, management theorists have not been the only ones to embrace Maslow's hierarchy. Betty Friedan also accepted and used it in The Feminine Mystique. Friedan seems to have been attracted to Maslow's theory because of his earlier research on women's self‐esteem and sexuality, research which was central to the development of the needs hierarchy. Thus, management theory and liberal feminist theory have a common base in Maslow's hierarchy and self‐esteem research. This paper analyzes that common base, beginning with an examination of the masculine and hierarchical bias in the needs hierarchy. Then, after establishing the link between the needs hierarchy and the self‐esteem research, the paper moves to an analysis of the latter, and demonstrates the ways in which it misinterpreted women's experience and sexuality and valued only those women with stereotypically masculine characteristics and behaviours. The paper concludes with a discussion of the effect of the acceptance of Maslow's ideas on the women in management literature.
What Flexibility Do Women Offer? Comparing the Use of, and Attitudes to, Part‐Time Work in Britain and France in Retail Banking
Authors: O'Reilly Jacqueline
Published: August 2007

A much neglected aspect in the comparative literature on labour market flexibility has ignored how employers' use of flexibility is affected by national differences in labour market characteristics. In this paper the case of part‐time work, in the retail banking sector in Britain and France, is taken to show how the preferences of available female workers, together with differences in educational attainment, childcare provision, legal regulation, personnel policy and organizational culture affect employers' use of this type of flexibility. The main argument of this paper is that the type of flexibility employers can obtain from female workers varies between countries. Thus employers design jobs, consciously or not, in response to these differences. This paper supports the approach which emphasizes the need to integrate an analysis of economic production with social reproduction so as to enrich our understanding, from a comparative perspective, of the nature of contemporary work organization.
‘It's Just Something that Happens’: the Invisibility of Sexual Harassment in the Workplace
Authors: Thomas Alison M. , Kitzinger Celia
Published: August 2007

This paper critically examines the construction and definition of sexual harassment — both in policy documents and in everyday life experiences — in order to consider why it is often invisible in the workplace. Drawing on semi‐structured interview data, it explores, in particular, the ways in which accounts of experiences of sexual harassment effectively minimize both its incidence and its importance. Finally, it considers the implications of this in order more effectively to combat sexual harassment in the workplace.
Glass Ceiling or Iron Cage: Women in UK Academia
Authors: Morley Louise
Published: August 2007

This paper reviews some of the literature on women's position in the academic workforce in the UK, and considers an informal study conducted by the author of 12 women academics. A central consideration is the relationship between women's quantitative under‐representation in the academy and women academics' self‐concept and consciousness of their own abilities.
The Gendered Nature of Managerial Discourse: the Case of a Local Authority
Authors: Maile Stella
Published: August 2007

This paper is a response to organizational analysis which highlights the significance of discursive processes in the formation of occupational gender identity. A recurrent weakness in many of these accounts is their focus on the simple dualisms which structure gendered discourse. This tendency is often associated with the abstraction of debate from specific organizational settings. I aim therefore to address the question of the gendered nature of managerial discourse with reference to a case study of a local authority under restructuring. I argue here that the gendered nature of managerial discourse has to be seen as particularly complex, given the way in which it incorporates both ‘feminine’ and ‘masculine’ identities within an overarching managerial ethos, which is itself related to wider hegemonic projects.
Probing the Opposition to Affirmative Action
Authors: Bergmann Barbara R.
Published: August 2007

People's attitudes toward affirmative action are explored by means of a survey instrument that presents respondents with a scenario of a firm that has several hundred well‐paying jobs that only require skills learned on the job. The instrument comes in two versions: one that explores people's reaction to a history of the complete exclusion of blacks, and the other to the complete exclusion of women. Respondents are given a menu of possible actions the firm might take, and asked which they favor. In addition they are asked to react to a number of statements that explore their thoughts as to the reasons for the exclusions, how fair the company's decision processes seem, and how much importance should be attached to remedying the situation. By an overwhelming margin, a group of mainly white college students refused to endorse the idea that the exclusion of blacks or women was explained by their inability or unwillingness to do the jobs in question. Respondents split about evenly on the desirability of taking special hiring actions to repair exclusions. Those rejecting such actions tended to reject also the idea that the country would be better off if occupational segregation by race and sex were eased.
Psychological Gender Issues in Computing
Authors: Brosnan Mark J. , Davidson Marilyn J.
Published: August 2007

This paper builds on the implication from Rosen et al.'s (1987) work that the variation in findings with respect to gender differences in attitudes towards computers and anxiety caused by computers (i.e. ‘computerphobia’), may be due in part to differences of psychological gender (regardless of biological gender) within subjects. Sandra Bem's (1974, 1981) theory of psychological gender is incorporated into the research, identifying subjects as ‘sex typed’ or ‘androgynous’. A student population of under/post graduates (N=282; 50.7% of which were male and 49.3% were female) is presented with the Bem Sex Role Inventory (BSRI), a computer anxiety questionnaire (Heinssen et al. 1987) and a computer attitude questionnaire (Dambrot et al. 1985). The latter questionnaire has positive and negative subscales. The results indicate that masculinity correlates with positive attitudes towards computers for both sexes. In addition masculinity was correlated with less anxiety and less negative attitudes towards computers for females, lending support to a sex by gender interaction (i.e. that masculinity has a different effect on each sex). Femininity correlated negatively with programming experience in females. This is discussed in relation to computing being seen as a ‘male activity’, and the subsequent educational and organizational implications identified.
Sexualizing the Organization, Lesbianizing the Women: Gender, Sexuality and ‘Flat’ Organizations
Authors: Oerton Sarah
Published: August 2007

This article draws upon research with men and women workers in ‘flat’ organizations, namely mixed‐sex and all‐women's worker co‐operatives and collectives in the voluntary sector. It argues that the denial of sales, contracts and grants to women's co‐operatives and collectives in particular, can be connected to discourses of sexuality generally and to the assumptions surrounding lesbianism and separatism in particular. Such discourses are often used to marginalize women workers and their co‐operatives and collectives, irrespective of whether the women in such organizations are lesbians or not. It is argued that when women workers organize in ways which challenge male‐dominated hierarchy, their marginalization necessarily takes a sexualized form because organizations, whether hierarchical or less/non‐hierarchical, are not only gendered but are also sexualized. This analysis thus offers an important additional dimension to the view that the marginalization of co‐operatives and collectives is due to their small size, lack of capital, location in certain sectors of the economy, or assumptions concerning the ‘alternative’ or ‘fringe’ nature of employment in such settings. This article also argues that sexuality can attach at the level of the organization, and not simply at the level of individual bodies or life‐styles, an argument often unacknowledged both in the literature on lesbians in the workplace, and in the literature on co‐operative businesses and less or non‐hierarchical voluntary sector organizations generally.
The Organizational Construction of Hegemonic Masculinity: The Case of the US Navy
Authors: Barrett Frank J.
Published: August 2007

This article examines the construction of hegemonic masculinity within the US Navy. Based on life history interviews with 27 male officers, this study explores alternative discourses and identities of officers from three different communities in the Navy: aviation, surface warfare, and the supply corps. Definitions of masculinity are relationally constructed through associations of difference: aviators tend to draw upon themes of autonomy and risk taking; surface warfare officers draw upon themes of perseverance and endurance; and supply officers draw upon themes of technical rationality. Further, these masculinities depend upon various contrasting definitions of femininity. Finally, this article explores a series of contradictions that threaten the secure construction of masculinity within this military culture.