La Estética Del Derecho
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Jhering's Concept of Rechtsgefühl and Its Role in the Struggle For
TRANSFORMACJE PRAWA PRYWATNEGO 4/2017 ISSN 1641–1609 JOSEFA BIRR* Jhering’s concept OF RECHTSGEFÜHL AND ITS ROLE IN THE STRUGGLE FOR LAW “It is the energy of our moral nature protesting against the violation of the law; it is the most beautiful and the highest testimony which Rechtsgefühl can bear to itself […]”. With these words, Rudolf von Jhering captured the attention of his audience at his Vienna lecture of The Struggle for Law in 872. The following paper is divided into three parts. I begin with a review of Jher- ing’s concept of Rechtsgefühl2. I then go on to look at its particular meaning in The Struggle for Law. Finally, I show how the function of Rechtsgefühl in The Struggle for Law fits into Jhering’s overall concept ofR echtsgefühl. In the late 9th and early 20th centuries, German jurisprudence was concerned with the phenomenology of Rechtsgefühl. This concept is enigmatic. Its range of meaning extends from an inner psychological disposition, or something that is given a priori, to an educated feeling for legal right, similar to legal intuition. Re- lated terms and frequently used synonyms such as Rechtsbewusstsein, Rechtsemp- finden, Gewissen and Sittlichkeit make a clear definition difficult. Rechtsgefühl is widely translated as “the feeling of the legal right” or “sense of justice”. The concept of “legal sentiment” comes closest. Still, in my opinion, none of these is quite accurate. Thus, in the following I use the term Rechtsgefühl. * Dipl.-Jur., Göttingen. R. von Jhering: The Struggle for Law (1872), translated from the fifth German edition by J.J. -
CSABA VARGA Transition? to Rule of Law? Varga Jogallami Angol Proba Tartalek Ks Korr01.Qxp 2008.01.23
PoLíSz series CSABA VARGA Transition? To rule of law? varga_jogallami_angol_proba_tartalek_ks_korr01.qxp 2008.01.23. 12:28 Page 1 CSABA VARGA TRANSITION? TO RULE OF LAW? Constitutionalism and Transitional Justice Challenged in Central & Eastern Europe varga_jogallami_angol_proba_tartalek_ks_korr01.qxp 2008.01.23. 12:28 Page 2 CSABA VARGA was born in Pécs. Since graduation in law in 1965, he has been an academic researcher at the Institute for Legal Studies of the Hungarian Academy of Sciences, since 1991 as scientific adviser. He became a Professor of Law at the metropolitan Eötvös Loránd University in the same year. By the foundation of the Faculty of Law of the Pázmány Péter Catholic University of Hungary in 1995, he founded and has also been heading its Institute for Legal Philosophy, granted by the National Accreditation Committee in 2006 the sole title “Place of Excellence” for a chair in the country. One of the founders (as its secretary between 1976–2006 and since then as its chairman) of the Hungarian National Section of the International Association for Philosophy of Law and Social Philosophy (IVR); a political adviser to and a member of the Advisory Board of the first free-elected Prime Minister of Hungary (1991–1994), serving as an editorial board member of Current Legal Theory (1983–1998), Ratio Juris (1988–), Legal Theory (1993–1999), as well as of Világosság [a philosophical forum] (2003–). In 2004, he was elected as an associated member of the International Academy of Comparative Law. His bibliography is available in both http://varga.jak.ppke.hu and Theatrvm legale mvndi Symbola Cs. -
Virus 7.Indd
VIRUS VIRUS BEITRÄGE ZUR SOZIALGESCHICHTE DER MEDIZIN HERAUSGEGEBENVIRUS VOM VEREIN FÜR SOZIALGESCHICHTE DER MEDIZIN BEITRÄGE ZUR SOZIALGESCHICHTE DER MEDIZIN 6 HERAUSGEGEBEN VOM VEREIN FÜR SOZIALGESCHICHTE DER MEDIZIN 7 VERLAGSHAUSVERLAGSHAUS DER DER ÄRZTE ÄRZTE GESELLSCHAFTGESELLSCHAFT FÜR MEDIENPRODUKTION FÜR MEDIENPRODUKTION UND UNDKOMMUNIKATIONSBERATUNG KOMMUNIKATIONSBERATUNG GMBH GMBH Vorstand: Präsidentin: Univ.-Doz. Mag. Dr. phil. Dr. med. Sonia Horn Präsidentin-Stv.: Mag. phil. Dr.med. Ingrid Arias Kassier: Mag. Dr. phil. Thomas Aigner, MAS Kassier-Stv.: Mag. pharm. Gilbert Zinsler Schriftführerin: Mag. phil. Karin Maringgele © 2008 Verlagshaus der Ärzte Schriftführerin-Stv.: Mag. Marcel Chahrour GmbH, Nibelungengasse 13, A 1010 Wien, Wissenschaftlicher Beirat: www.aerzteverlagshaus.at Univ.-Prof. Dr. phil. Gunda Barth-Scalmani, Innsbruck Das Werk ist urheberrechtlich Univ.-Prof. Dr. phil. Birgit Bolognese-Leuchtenmüller, Wien geschützt. Die dadurch begründeten Univ.-Prof. Dr. phil. Elisabeth Dietrich-Daum, Innsbruck Rechte, insbesondere das der Über- Univ.-Prof. Dr. phil. Dr. med. Michael Hubenstorf, Wien setzung, des Nachdrucks, der Pflegedir. DKS Maria Jesse, Wien Entnahme von Abbildungen, der Univ.-Prof. Dr. phil. Robert Jütte, Stuttgart Funksendung, der Wiedergabe auf Univ.-Prof. Dr. med. Christine Marosi, Wien fotomechanischem oder ähnli- Univ.-Prof. Dr. rer.nat. Dr. med. Werner Mohl, Wien chem Wege und der Speicherung PD Dr. Carlos Watzka in Datenverarbeitungsanlagen, Univ.-Prof. Dr. med. Claudia Wiesemann, Göttingen bleiben, auch bei nur auszugsweiser Verwendung, vorbehalten. Verein für Sozialgeschichte der Medizin Autoren und Verlag haben alle Förderung der Forschung auf dem Gebiet der Sozialgeschichte der Medizin mit dem Buchinhalte sorgfältig erwogen Ziel, eine Vielfalt von Herangehensweisen und Methoden zu unterstützen – Veran- und geprüft, dennoch kann keine staltung von Vorträgen, Seminaren, Tagungen, Ausstellungen und ähnlichen wis- Garantie übernommen werden. -
Editorial Preface to This Volume
University of Michigan Law School University of Michigan Law School Scholarship Repository Other Publications Faculty Scholarship 1914 Editorial Preface to This Volume Joseph H. Drake Available at: https://repository.law.umich.edu/other/153 Follow this and additional works at: https://repository.law.umich.edu/other Part of the Law and Philosophy Commons, and the Legal History Commons THE FORMAL BASES OF LAW BY GIORGIO DEL VECCHIO Professor of Philosophy of Law in the University of Bologna TRANSLATED BY JOHN LISLE of the PhiladelphiaBar WITH AN EDITORIAL PREFACE BY JOSEPH H. DRAKE Professor of Law in the University of Michigan AND WITH INTRODUJCTIONS BY SIR JOHN MACDONELL Professor of ComparativeLaw in University College, London AND SHEPARD BARCLAY Former Chief Justice of the Supreme Court of Missouri First Published 1914 (Boston: The Boston Book Company) Reprinted 1969 By Arrangement with the Macmillan Company EDITORIAL PREFACE TO THIS VOLUME By JOSEPH H. DRAKE' I. The Author and the Translator. GIORGIO DEL VECCHIO (born at Bologna, August 26, 1878) studied at the universities of Genoa, Rome and Berlin, obtaining in the University of Genoa his doctor's degree in the philosophy of law. In the year 1903 he was nominated professor of that subject in the University of Ferrara, where he began his teaching with the discourse "Right and Human Personality in the History of Thought." He occupied that chair till the end of 1906, giving also a course of lectures as docent in the University of Bologna during the years 1905 and 1906. In 1906 he was nominated for the professorate of the philosophy of law in the University of Sassari and remained there until the end of 1909. -
Jhering En Ortega Y Gasset Jhering in Ortega Y Gasset
Doxa. Cuadernos de Filosofía del Derecho, (2020), 43 e-ISSN: 2386-4702 | ISSN: 0214-8676 Jhering en Ortega y Gasset Jhering in Ortega y Gasset Juan José Gil Cremades Autor: Resumen Juan José Gil Cremades Universidad de Zaragoza, España A partir de 1933, abandonada la política activa, Ortega [email protected] https://orcid.org/0000-0002-2704-9352 dedicó su atención, entre otros temas, a la filosofía social; particularmente a desentrañar el «hecho social», que creyó Recibido: 8-4-2019 Aceptado: 13-11-2019 radicaba en los «usos», quizá bajo la inspiración de Jhe- ring. Cómo llegó a él, fallecido en 1892, qué lectura hizo Citar como: Gil Cremades, Juan José, (2020). Jhering en Ortega de su obra, cómo modificó sus planteamientos y cómo su y Gasset. Doxa. Cuadernos de Filosofía del Derecho, propuesta fue recibida por la coetánea filosofía española 43, pp. 31-58. https://doi.org/10.14198/ DOXA2020.43.02 del derecho, son las cuestiones estudiadas en este trabajo. Licencia: Palabras clave: Jhering; Ortega y Gasset; hecho social; Este trabajo se publica bajo una Licencia Creative uso social. Commons Atribución 4.0 Internacional. Abstract © Juan José Gil Cremades After 1933, when he abandoned active politics, Ortega devoted his attention, among other topics, to social phi- losophy; particularly to unraveling the «social fact», which he believed was rooted in «customs», perhaps under the inspiration of Jhering. How he came to it, died in 1892, what reading he made of his work, how he modified his approaches and how his proposal was received by the con- temporary spanish philosophy of law are the questions studied in this work. -
The Art of Judging and Power, Pedagogy, & Praxis: Article 4 Moving the Classroom to Action
Loyola of Los Angeles Law Review Volume 32 Number 3 Symposia—The Brennan Legacy: The Art of Judging and Power, Pedagogy, & Praxis: Article 4 Moving the Classroom to Action 4-1-1999 The Brennan Legacy: The Art of Judging Ruggero J. Aldisert Follow this and additional works at: https://digitalcommons.lmu.edu/llr Part of the Law Commons Recommended Citation Ruggero J. Aldisert, The Brennan Legacy: The Art of Judging, 32 Loy. L.A. L. Rev. 673 (1999). Available at: https://digitalcommons.lmu.edu/llr/vol32/iss3/4 This Symposium is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. THE BRENNAN LEGACY: TIE ART OF JUDGING Judge Ruggero J. Aldisert* I. INTRODUCTION What does ajudge do when he or she decides a case? Benjamin Cardozo posed this question in 1921 and answered it in what has become a classic of American legal literature, The Na- ture of the Judicial Process.' Drawing from his wealth of scholar- ship and experience as Chief Judge of the New York Court of Ap- peals, he described the ingredients that enter "that strange compound which is brewed daily in the caldron of the courts."2 Cardozo's analysis and philosophy examined the accepted definition of the ju- dicial process: What courts do and should do, and how judges rea- 3 son and should reason in deciding particular cases. -
Hart and Fuller on Radbruch
The Catholic Lawyer Volume 5 Number 2 Volume 5, Spring 1959, Number 2 Article 5 One Phase of the New Debate on the Iniquitous Law - Hart and Fuller on Radbruch William F. Cahill, B.A., LL.B., J.C.D. Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl Part of the Catholic Studies Commons, and the Ethics and Political Philosophy Commons This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. ONE PHASE OF THE NEW DEBATE ON THE INIQUITOUS LAW- Hart and Fuller on Radbruch WILLIAM F. CAHILL, B.A., LL.B., J.C.D.* ERICA, IN THE FIRST HALF of the twentieth century, heard little debate on the question, "Need the law be moral?" Many who might have taken the negative in such a debate said nothing because they thought the question meaningless or at least unprofitable.' Not imagin- ing that the law could need conscience, they discounted the power of conscience to make demands upon the law, and so put aside the problem of relating morals and the law. It was enough to know that in the distant past Blackstone had maintained that an immoral law had no validity,2 while Austin asserted that a law which actually exists is a law though it contravene morals. 3 The debate could be revived only by the occurrence of some event in which might appear the unimagined horrors that could be produced by laws which neither relied upon conscience nor answered to con- science. -
Five Minutes of Legal Philosophy (1945)*
Oxford Journal of Legal Studies, Vol. 26, No. 1 (2006), pp. 13–15 doi:10.1093/ojls/gqi042 Five Minutes of Legal Philosophy (1945)* GUSTAV RADBRUCH TRANSLATED BY BONNIE LITSCHEWSKI PAULSON AND STANLEY L. PAULSON First Minute ‘An order is an order’, the soldier is told. ‘A law is a law’, says the jurist. The soldier, however, is required neither by duty nor by law to obey an order whose object he knows to be a felony or a misdemeanor, while the jurist—since the last of the natural lawyers died out a hundred years ago—recognizes no such excep- tions to the validity of a law or to the requirement of obedience by those subject to it. A law is valid because it is a law, and it is a law if, in the general run of cases, it has the power to prevail. This view of a law and of its validity (we call it the positivistic theory) has ren- dered jurists and the people alike defenceless against arbitrary, cruel, or criminal laws, however extreme they might be. In the end, the positivistic theory equates law with power; there is law only where there is power. Second Minute Attempts have been made to supplement or replace this tenet with another: Law is what benefits the people. That is to say, arbitrariness, breach of contract, and illegality—provided only that they benefit the people—are law. Practically speaking, this means that what- ever state authorities deem to be of benefit to the people is law, including every despotic whim and caprice, punishment unsanctioned by statute or judicial * ‘Fünf Minuten Rechtsphilosophie’, first published in the Rhein-Neckar-Zeitung (Heidelberg), 12 September 1945, repr. -
Review of Justice. an Historical and Philosophical Essay by Giorgio Del
THE UNIVERSITY OF CHICAGO LAW REVIEW [Vol. 22 Justice. An Historical and Philosophical Essay. By Giorgio Del Vecchio. Edited with additional notes by A H. Campbell. New York: Philosophical Library, 1953. Pp. xxi, 236. $6.00. i Natural Right and History. By Leo Strauss. Chicago: University of Chicago Press, 1953. Pp. x, 327. $5.00. Plato's Modem Enemies and the Theory of Natural Law. By John Wild. Chi- cago: University of Chicago Press, 1953. Pp. 259. $5.50. These are three recent books on natural law. The first is a translation from an Italian philosopher of law; the other two are American books, the one by a social, the other by a general philosopher. Del Vecchio's Justice is the first English translation of this work, published in the United Kingdom by the Edinburgh University Press. Del Vecchio's 'Formal Bases of Law" were published in English in the Ten Modern Legal PhilosophiesSeries in 1914. An article by him appeared in English in the Roscoe Pound Festschrift, and his "Truth and Untruth in Morals and Law" was re- cently published in the Iowa Law Review.' The text of this small book occupies only eighty pages; the bulk of the book consists of notes. The author poses the problem of justice in its relation to law; the essence of justice is a certain proportionality (Leibniz) between men, Dante's hominis ad hominem proportio. Del Vecchio presents a historical survey of the ideas on justice, from the Greeks via the Patristic to Scholastic philosophy. The principal emphasis is put on Plato, Aristotle, St. -
Answers Parsed from Works of Two International Lawyers
THE INTERNATIONAL LAWYER A TRIANNUAL PUBLICATION OF THE ABA/SECTION OF INTERNATIONAL LAW Why We Read The International Lawyer - Answers Parsed from Works of Two International Lawyers PATRICK DEL DUCA* The InternationalLawyer's penetrating, permeating, multi-faceted, multi- cultural, cross-boundary, cross-disciplinary, and global treatment of the many dimensions of international law fascinates me, and no publication over the last fifty years has so consistently engaged practicing lawyers in creating that fascination. Nowhere else does such a diverse assortment of practitioners of international law of all kinds lay out the issues that they address in perspectives keenly grounded in both practice and theory. The contributors to The InternationalLawyer and its readers share an appreciation not only of the importance of the rule of law, but also an appreciation of how an understanding of the law in multiple contexts and of how the law bridges those contexts can advance the law and the interests of those subject to it, as well as the careers of those who seek to practice it. We, the readers of, and contributors to, The International Lawyer are restless souls, ever seeking fresh perspectives on the challenges that we confront in our professional lives, motivated not only by immediate client needs, but also by a sense that the law is a global endeavor, fundamental to human achievement. Of course, we are lawyers and hence not timid in claiming that our chosen profession offers, perhaps even uniquely, the tools to resolve the truly important problems, much as economists, political scientists, philosophers, and theologians might likewise argue that their respective professions afford. -
Comment Main Trends of Italian Legal Philosophy
COMMENT MAIN TRENDS OF ITALIAN LEGAL PHILOSOPHY* Sergio Cotta** I The philosophical reflection on law has followed a rather steady course in Italy since the Middle Ages. The scholastic reflection on law (or still better-laws) centered around the problem of natural law and, having its organic exposition in Aquinas' systematization, went side by side with the secular theories of Marsilius of Padua, who elaborated a conception of law as an expression of State will. As to the mediaeval jurists, natural law was discussed (even though often rather naively) by the glossators; the problems of the legal method and the characteristics of law engaged much attention by the commentators. In the "civil philosophy" of humanism and renaissance, a prominent place belongs to problems of justice, to the relations between law and morals, and to the end of laws. From the second half of the sixteenth century to the eighteenth century, we do not find in Italy anything comparable with the systematic research and doctrines on natural law that flourished in the other parts of Europe due especially to the work of the Spanish catholic school (ranging from Vitoria to Suarez) and of the so-called lay school of natural law (ranging from Grotius to the younger Fichte). However, in the eighteenth century a striking revival of legal-philosophical studies took place in Italy. Only two authors (whose renown abroad is inversely proportional to their philo- sophical significance) need be mentioned here-Giambattista Vico and Cesare Beccaria, in whom the main tendencies of this revival are embodied. With Vico's two chief works, Diritto universale (1720-1721) and Principi di una Scienza nuova (1725-1730), a clearly speculative trend, centered on the problem of the relations between truth and history, is as- serting itself. -
Universidade Federal Fluminense Programa De Pós-Graduação Stricto Sensu Em Direito Constitucional
UNIVERSIDADE FEDERAL FLUMINENSE PROGRAMA DE PÓS-GRADUAÇÃO STRICTO SENSU EM DIREITO CONSTITUCIONAL WINGLER ALVES PEREIRA O DILEMA DO IMAGINÁRIO CONSTITUCIONAL BRASILEIRO: TUPI OR NOT TUPI Niterói 2016 WINGLER ALVES PEREIRA O DILEMA DO IMAGINÁRIO CONSTITUCIONAL BRASILEIRO: TUPI OR NOT TUPI Dissertação de Mestrado apresentada ao Programa de Pós-Graduação em Direito Constitucional da Universidade Federal Fluminense, como requisito parcial para obtenção do grau de Mestre na Área de Concentração em Direito Constitucional. Orientador: Prof. Dr. André Saddy Coorientador: Prof. Dr. Carlos Sávio Gomes Teixeira Niterói 2016 WINGLER ALVES PEREIRA O DILEMA DO IMAGINÁRIO CONSTITUCIONAL BRASILEIRO: TUPI OR NOT TUPI Dissertação de Mestrado apresentada ao Programa de Pós-Graduação em Direito Constitucional da Universidade Federal Fluminense, como requisito parcial para obtenção do grau de Mestre na Área de Concentração de Direito Constitucional. _______________, em ____ de março de 2016. BANCA EXAMINADORA ___________________________________________________________ Prof. Dr. André Saddy (orientador) – Universidade Federal Fluminense ___________________________________________________________ Prof. Dr. Carlos Sávio Gomes Teixeira (coorientador) – Universidade Federal Fluminense ___________________________________________________________ Prof. Dr. Eduardo Manuel Val – Universidade Federal Fluminense ___________________________________________________________ Prof. Dr. Anderson Vichinkeski Teixeira – Universidade do Vale do Rio dos Sinos Niterói 2016 AGRADECIMENTOS