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Redalyc.“This Cannot Be Its Meaning in the Mouth of the Judge” (The Case for the New English Language Translation of Alf Utopía y Praxis Latinoamericana ISSN: 1315-5216 [email protected] Universidad del Zulia Venezuela HOLTERMANN, Jakob V. H. “This cannot be its meaning in the mouth of the judge” (The case for the new English language translation of Alf Ross’s On Law and Justice forthcoming on Oxford University Press) Utopía y Praxis Latinoamericana, vol. 20, núm. 71, octubre-diciembre, 2015, pp. 19-30 Universidad del Zulia Maracaibo, Venezuela Available in: http://www.redalyc.org/articulo.oa?id=27945658003 How to cite Complete issue Scientific Information System More information about this article Network of Scientific Journals from Latin America, the Caribbean, Spain and Portugal Journal's homepage in redalyc.org Non-profit academic project, developed under the open access initiative STIS UTOPÍA Y PRAXIS LATINOAMERICANA. AÑO: 20, Nº. 71 (OCTUBRE-DICIEMBRE), 2015, PP 19-30 REVISTA INTERNACIONAL DE FILOSOFÍA Y TEORÍA SOCIAL CESA-FCES-UNIVERSIDAD DEL ZULIA. MARACAIBO-VENEZUELA. “This cannot be its meaning in the mouth of the judge” (The case for the new English language translation of Alf Ross’s On Law and Justice forthcoming on Oxford University Press) “Esto no puede ser su signicado en la boca del Juez” (El caso de la nueva traducción al inglés de Sobre la Ley y la Justicia de Alf Ross editado por Oxford University Press). Jakob V. H. HOLTERMANN 1 Centre of Excellence for International Courts Faculty of Law, University of Copenhagen. Resumen Abstract La segunda edición en inglés de la obra The second English edition of Alf Ross’s principal de Alf Ross Sobre el derecho y la justicia main work On Law and Justice is forthcoming on the será próximamente publicada por Oxford University Press. En lugar de simplemente volver a imprimir la Oxford University Press. Instead of simply reprinting the traducción existente al inglés de 1958, la nueva edición existing English language translation from 1958 the new contiene una nueva traducción completa. Este artículo edition contains a full new translation. This arti cle by the del editor de la nueva edición desarrolla el argumento editor of the new edition unfolds the argument for this a favor de esta decisión. Este argumento se centra choice. This argument focuses on the highly negative en el papel altamente negativo de la inuencia crítica de H.L.A. Hart para la recepción de la obra de Ross role of H.L.A. Hart’s inuential critique for the reception sobre la losofía del derecho anglo-americano. Se of Ross’s work in Anglo American legal philosophy. arma, en primer lugar, que la crítica de Hart pierde It claims, rst of all, that Hart’s critique essentially esencialmente su validez, y que en última instancia es misses the mark, and that it is ultimately a straw man. un hombre de paja. Sostiene además que, a pesar de que Hart fue, al menos en parte, responsable de esta It further argues that even though Hart was at least mala interpretación, la traducción al inglés de 1958, partly responsible for this misreading the 1958 English ciertamente no ayudó. Debido a una serie de errores, translation certainly did not help. Due to a number omisiones y decisiones terminológicas problemáticas, of errors, omissions and problematic terminological de la primera traducción se puede decir, al menos, que choices the rst translation can be said to at least invite invita al lector poco atento o menos caritativo a incurrir en el tipo de lectura errónea en la que el propio Hart the inattentive or uncharitable reader to arrive at the kind incurrió. of misreadings Hart arrived at. Palabras clave: Alf Ros; realismo jurídico escandinavo; H.L.A. Hart; sobre el derecho y la justicia; ley válida; Keywords: Alf Ross; scandinavian legal realism; H.L.A. traducción. Hart; On Law and Justice; valid law; translation. 1 Associate Professor in Legal Philosophy, iCourts –([email protected]). This research is funded by the Danish National Research Foundation Grant No. DNRF105 and conducted under the auspices of the Danish National Research Foundation’s Centre of Excellence for International Courts (iCourts). Recibido: 22-05-2015 ● Aceptado: 14-07-2015 aob TR 20 T is cannot be its meanin in t e mot of t e de T e case for t e ne nlis “The task of making more exact a vague or not quite exact concept used in everyday life or in an earlier stage of scientic or logical development, or rather of replacing it by a newly constructed, more exact concept, belongs among the most important tasks of logical analysis and logical construction”. CARNAP, R. (1947). Meaning and Necessity: A Study in Semantics and Modal Logic. Chicago, Illinois: The University of Chicago Press, pp.7-8. 1. INTRODUCTION Recent years have seen a strong revival of interest in Scandinavian Legal Realism generally and in Alf Ross’s legal philosophy in particular. Prestigious journals publish articles on or by Scandinavian Realists 2, entire special issues are devoted to the topic 3, and a few years ago the Oxford University Press decided that the time was ripe for a new translation of Alf Ross’s On Law and Justice 4. One driving factor in this development has been the increasing realization that the Scandinavians may, philosophically speaking, be more modern and topical than commonly thought. Originally, Scandinavian Realism was conceived on the basis of very austere empiricist general philosophical theories from the rst half of the 20 th century – in Alf Ross’s case on the basis of logical positivism as originally conceived in the Vienna Circle. However, since logical positivism is largely moribund today and more or less has been thus considered since the middle of the 20th century, legal philosophers seemed in many years to be in the habit of drawing the conclusion that Scandinavian Realism was moribund too 5. Within roughly the last decade, however, this perception seems to have changed, and it seems to have done so as a result of a development in relation to American Legal Realism initiated a few years earlier by Brian Leiter. Thus, in 1997 Leiter launched a convincing and soon to become hugely inuential argument that the American Realists could be read as a kind of philosophical naturalists in the sense attributed to that term by W. V. Quine in his seminal article “Epistemology Naturalized”. 6 A decade 2 Cf. e.g. ENG, S (2011). “Lost in the System or Lost in Translation? The Exchanges between Hart and Ross”. Ratio Juris , 24 (2 June), pp.194-246. doi:10.1111/j.1467-9337.2011.00482.x; HOLTERMANN, J v H (2015). “Getting Real or Staying Positive-Legal Realism(s), Legal Positivism and the Prospects of Naturalism in Jurisprudence”. Ratio Juris-An International Journal of Jurisprudence and Philosophy of Law. doi:1111/raju.12071; ROSS, A (2011 [1936]). The 25th Anniversary of the Pure Theory of Law. Paper presented at the Oxford Journal of Legal Studies. 3 Cf. e.g. this issue and BRUNET, P; ERIC, M & MERCIER, J (Ed.) (2014). Scandinavian Realism in All of Its Forms. Special issue of Revus: Journal for constitutional theory and legal philosophy, Vol. 24. 4 ROSS, A (Forthcoming 2016). On Law and Justice. Trans. U. Bindreiter &. J. v. H. Holtermann Ed. Rev. Ed. /and a new introduction for this edition by J.v.H. Holtermann (Ed.). Oxford, Oxford University Press. 5 Thus e.g., the following passage: “Scandinavian Realism [survives] only in the museums of jurisprudential archaeology”. SCHAUER, F & WISE, VJ (1997). “Legal Positivism as Legal Information”. Cornell Law Review , 82, p. 1081. 6 Cf. LEITER, B (1997). “Rethinking Legal Realism: Toward a Naturalized Jurisprudence”. Texas Law Review, 76, 2, December, pp. 267- 315; QUINE, WVO (1969). “Epistemology Naturalized”, in: QUINE, WVO (Ed.) (1969). Ontological Relativity and Other Essays. New York, Columbia University Press, pp.69-90. Leiter has later expanded and rened the argument in several articles. A collection of the most important are found in: LEITER, B (2007b). Naturalizing jurisprudence: essays on American legal realism and naturalism in legal philosophy. Oxford, Oxford University Press. toía y rais atinoamericana o 20 71 2015 1930 21 later, in an interview replying to the question: “To which problem, issue or broad area of legal philosophy would you most like to see more attention paid in the future?”, Leiter suggested that perhaps this whole philosophical maneuver of naturalizing the American Realists could also, mutatis mutandis , be carried out with the Scandinavian Realists: Scandinavian Realism deserves a sympathetic reconsideration, along the lines of what I have tried to do for its (distant!) American cousin. It is true that the Scandinavians suffer from the vice of being motivated almost exclusively by logical positivist doctrines in semantics, epistemology, and ontology, doctrines which are largely moribund (for good reasons) in philosophy. Yet the general naturalistic conception of the world that animated their theoretical writings is not moribund, and the question of how to accomodate norms within such a world view is very much a live one. Perhaps the Scandinavians still have something to teach us? Certainly they have not yet received sympathetic scrutiny within Anglophone jurisprudence 7. Unbeknown to Leiter the rst modest steps in this direction had in fact already been taken at the time, although they had been taken in ignorance of the highway laid out by him a decade earlier. 8 Soon, however, more works would follow that would directly engage with and build on the thoughts developed by Leiter. 9 Focusing for current purposes on Alf Ross, it is quite likely that the actual feasibility of this exercise – i.e. of dismounting the central tenets of his realistic legal theory from their commitment to logical positivism and reinserting them into a fundamentally different, but modern and viable philosophical framework – has been conducive to the present growth of interest in his work.
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