REX MARTIN, Professor of Philosophy
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Summary of Academical Accomplishments 1. Christoph-Eric
Summary of academical accomplishments 1. Christoph-Eric Mecke 2. Diploma of general studies of French law (“Diplôme d'Études Juridiques Générales Françaises”) at the Faculty of Law and Economics of the University of Tours (France) obtained in 1986 after completing studies in France during one year. Diploma after legal studies at the Faculty of Law at the Georg August University in Göttingen obtained in 1991 (first state law examination). Diploma after a two-year law application in courts, public administration, public prosecutor's office and private law offices, conferral of the title of an assessor of law (entitles in Germany to practice as judge, prosecutor and attorney) granted by the High Court of Lower Saxony in Celle in 2007 (second state law examination). Degree of a Doctor of Legal Science awarded by the Council of the Faculty of Law at the Georg August University in Göttingen on July 17, 2007 on the basis of a comprehensive law examination (“Rigorosum”) and the presented monographic dissertation entitled Begriff und System des Rechts bei Georg Friedrich Puchta [= Concept and legal system in the legal thought of Georg Friedrich Puchta] marked with the highest possible final grade “summa cum laude”. 3. Information on employment in academic positions: 1991-1993 - junior researcher at the Department of Legal Theory at the Faculty of Law at the Georg August University in Göttingen; from February 1, 2008 to March 31, 2016 – researcher at the Department of Civil Law and History of Law and lecturer at the Faculty of Law at the Leibniz University in Hanover, there I’m still an academic teacher in the field of legal history from April 15, 2016 to December 31, 2017 – researcher at the Department of Roman Law and Pandetics at the Faculty of Law of the Georg August University in Göttingen; from January 1, 2018 until today – researcher and lecturer at the Brunswick European Law School at the Ostfalia University of Applied Sciences in Brunswick (Braunschweig). -
Alexy's Theory Of
Over the years Robert Alexy has devel- the other dimensions of his system are pre- oped a systemic approach to legal theory, sented here, along with a contribution on Alexy’s Theory of Law an approach whose dimensions include human rights, one of Alexy’s more recent discourse theory, principles theory, and a foci. Alexy’s work is receiving ever greater Proceedings of the Special Workshop “Alexy’s Theory of Law” non-positivist conception of law. Principles attention, both at home, in Germany, and th theoryisfoundattheverycoreofAlexy’s abroad, with translations of his treatises held at the 26 World Congress of the International Association for system. Constitutional rights, he argues, and papers into many languages. The au- Philosophy of Law and Social Philosophy in Belo Horizonte, 2013 are best understood as principles, and thors of the contributions aim to promote collisions between constitutional rights enquiry into Alexy’s project. While their – understood now as competing princi- general approach is that of analytical ju- ples – are resolved by balancing their re- risprudence, the individual contributions Edited by Júlio Aguiar de Oliveira / Stanley L. Paulson / spective weights. Critical examinations of reflect great variety in their respective as- Alexandre Travessoni Gomes Trivisonno Alexy’s work on principles theory and on sessments of Alexy’s seminal work. s Theory ofLaw ’ Alexy www.steiner-verlag.de ARSP ARSP Beiheft 144 Archiv für Rechts- und Sozialphilosophie Franz Steiner Verlag Franz Steiner Verlag ISBN 978-3-515-11043-3 de Oliveira / Paulson / Trivisonno 9 7 8 3 5 1 5 1 1 0 4 3 3 Alexy’s Theory of Law Edited by Júlio Aguiar de Oliveira / Stanley L. -
Law As a Means
LEGAL RESEARCH PAPER SERIES Paper No 8/2009 March 2009 Law as a Means LESLIE GREEN A revised version of this paper will appear in Peter Cane, ed. Hart-Fuller at 50 (Oxford: Hart Publishing) An abstract of this paper can be downloaded without charge from the Social Science Research Network electronic library at: http://ssrn.com/abstract=1351304 An index to the working papers in the University of Oxford Legal Research Paper Series is located at: <http://www.ssrn.com/link/oxford-legal-studies.html> LAW AS A MEANS Leslie Green∗ I. The instrumentalist thesis No one doubts that individual laws often serve as means to promote or secure certain ends. The rule against perpetuities is a means of setting temporal limitations on the grant of an estate. Bundles of laws working through statutes or fields of doctrine are also means to ends, including ends that are, under other descriptions, means to further ends. Enacting the Fewer School Boards Act1, for example, was intended as a means to the end of reducing the number of school boards, which was in turn intended as a means of uncoupling education from property tax, which was intended as a means of asserting financial discipline (and other sorts of discipline) over local schools, which the government of the day considered a desirable end. Examples like that make the instrumentality of laws sound like a top‐down affair. Just as often it is bottom‐up. It is not only legislatures and courts but also individuals who use laws as means to their ends. Leona Helmsley wanted her dog to be adequately provided for after her own death. -
Dworkin's Theory of Rights in the Age of Proportionality
Kai Möller1 Dworkin’s Theory of Rights in the Age of Proportionality ABSTRACT: There is probably no conceptualisation of rights more famous than Ronald Dworkin’s claim that they are ‘trumps’. This seems to stand in stark contrast to the dominant, proportionality- based strand of rights discourse, according to which rights, instead of trumping competing interests, ultimately have to be balanced against them. The goal of this article is to reconcile Dworkin’s work and proportionality and thereby make a contribution to our understanding of both. It offers a critical reconstruction of Dworkin’s theory of rights which does away with the misleading label of rights as ‘trumps’ and shows that, far from being in conflict with proportionality, properly understood Dworkin’s work supports and supplements that doctrine and provides a much-needed account of its moral foundation as being about human dignity, freedom, and equality. 1 Associate Professor of Law, Department of Law, London School of Economics and Political Science. I would like to thank Jurriën Hamer, Ester Herlin Karnell, Mattias Kumm, Dimitrios Kyritsis, Iddo Porat, Gila Stopler, and Samuel Tschorne for their valuable comments and suggestions. Various versions of this paper were presented at the Law Faculty Seminar Series at Utrecht University and the Free University of Amsterdam, the Public Law Theory Seminar Series at Humboldt University Berlin, and the Berlin Colloquium on Global and Comparative Public Law at Humboldt University. I am grateful to the organisers and the participants for their valuable feedback. Furthermore, I would to acknowledge the support of the Grant Agency of the Czech Academy of Sciences as part of a project on ‘The Role of the Principle of Proportionality in the Decision-Making of Courts’ (grant ID: 15- 23955S – Subsidy RVO: 68378122), awarded to the Institute of State and Law of the Academy of Sciences of the Czech Republic. -
Conclusion: Beyond Legal Positivism and Natural Law?
Conclusion: Beyond Legal Positivism and Natural Law? Peter Langford and Ian Bryan Opposition to the natural law tradition, and to its potential re-emergence, forms an integral element of Kelsenian legal positivism. While the conceptual dichotomy between natural law and legal positivism has a discernible historical dimension,1 its substance, subsistence and validity remain of pressing concern in contemporary legal theory. The Kelsenian theoretical framework, together with its emphatic rejection of natural law theories has, over the course of the late twentieth- and early twenty-first century, been increasingly supplanted by a theory of legal positivism originating in the work of Hart.2 In contrast to the radical separation in Kelsenian legal positivism,3 Hartian and Hartian- influenced legal positivism focuses upon the degree to which law and moral- ity occupy discrete, or, in the alternative, intersecting domains; with, broadly, exclusive legal positivists inclined to complete separation,4 and inclusive (or soft) legal positivists comprehending varying degrees of interconnectedness between law and morality.5 The advent of Hartian and Hartian-influenced 1 See, for example, John Finnis, Natural Law and Natural Rights, (Oxford: Oxford University Press, 1980; 2nd ed., Oxford: Oxford University Press, 2011); John Finnis, ‘The Truth in Le- gal Positivism’, in Robert P. George, (ed.), The Autonomy of Law: Essays in Legal Positivism, (Oxford: Clarendon Press, 1996), 195–214; and Robert P. George, In Defense of Natural Law, (Oxford: Clarendon Press, 1999). 2 See Herbert. L A. Hart, The Concept of Law, (Oxford: Clarendon Press, 1961; 2nd ed., Oxford: Oxford University Press, 1994). See, also, Herbert L.A. -
Jürgen Habermas's Postconventional Constractarianism As Cosmopolitan
2017 LINGUA POSNANIENSIS LIX (1) DoI 10.1515/linpo-2017-0003 Jürgen Habermas’s postconventional constractarianism as cosmopolitan constitutionalism1 Karolina M. Cern Institute of philosophy, adam Mickiewicz University in poznań [email protected] Abstract: Karolina M. Cern. Jürgen Habermas’s postconventional constractarianism as cosmopolitan consti- tutionalism. the poznań Society for the advancement of the arts and Sciences, pL ISSn 0079-4740, pp. 27-38 In the course of this paper article I shall depict in what way Jürgen habermas’s application of the discourse theory to the democratic polity transforms the contractarian theoretical framework, presuming, however, that the reader is familiar with the general theoretical framework and the basic concepts characteristic for this political tradition. Moreover, I will also show that the relevance of this transformation consists in delivering a justification of a kind of cosmopolitan constitutionalism. Keywords: communicative action, discourse, public justifications, reflexive learning, self-constitutionalisation 1. Exposition of presuppositions and of the basic tool kit Cormac Mac amhlaigh develops a conception of “constitutionalism as legitimacy”, understood “as a form of reason-giving for the legitimacy of authority” (Mac amhlaigh 2016: 177-178). Further, he distinguishes three major accounts of this issue: sociological legitimacy, normative legitimacy and “mixed accounts” (2016: 182), and indicates Jürgen habermas as the most prominent proponent of the third account (2016: 184). What char- acterises the “mixed account” is a link between an external (ideal) yardstick for the evaluation of political and legal actions (“creating or sustaining a ‘right to rule’” (2016: 184)) and the actual beliefs and opinions of addressees of law (the ruled) on values, interests and norms (2016: 183). -
On the Structure and Domain of Human Rights Practice
Human Rights and the turn to justification: On the structure and domain of human rights practice Mattias Kumm1 There are three puzzling structural features of global human rights adjudication2 that have fostered scepticism about its philosophical respectability. First, the scope of legally recognized human rights is not narrowly focused on things fundamental or basic to human existence, but extremely broad (call this the problem of rights inflation). Second, most rights may be limited by measures that meet the proportionality requirement, thereby appearing to undermine prominently made claims that rights are trumps or fire walls that have priority over competing policy concerns (call this the problem of casual override). And third, notwithstanding the claim that human rights are universal, the kind of things that can be found on lists in international, regional or national human rights documents vary considerably between jurisdictions and instruments. And even when provisions are worded similarly, they are often interpreted differently in different states (call this the problem of variance). Yet, there is nothing pathological about a human rights practice that has such a structure. On the contrary, each of these structural features, I will argue, is connected to a distinctive moral point. Gaining a clearer understanding of each of these moral points and elucidating how they relate to one another is an important step towards the development of a more comprehensive theory of human rights. These three structural features work together to establish a practice, I 1 Inge Rennert Professor of Law, NYU School of Law and Research Professor for Global Public Law, WZB Berlin. 2 The term “global” in global human rights adjudication here refers to the predominant structures present in international, regional and national human rights practice. -
Some Issues in the Exchange Between Hans Kelsen and Erich Kaufmann
Some Issues in the Exchange between Hans Kelsen and Erich Kaufmann 1 Stanley L. Paulson 1 Introduction: Four Rounds in the Exchange …………….…………………. 270 2 Kaufmann’s Criticism: The “Two-Worlds” Doctrine ……………………. 279 3 Kaufmann’s Criticism, continued: Kelsen’s Legal Monism and the Postulate of Unity in Normative Cognition ……………… 282 4 Kaufmann’s Criticism, continued: Kelsen’s Legal Theory is “Formalistic”. Some Thoughts on Kelsen’s Reconstruction ……………. 284 5 Retrospect …………………………………………………………………….. 289 1 I wish to express my gratitude to the Alexander von Humboldt-Stiftung (Bonn - Bad Gotesberg) which supported this work through the conferral of the Humboldt Research Prize (2003-04). In my capacity as awardee, I spent the year in residence at the University of Kiel, and I remain grateful to my host there, Professor Robert Alexy, for his gracious hospitality. Finally, I am grateful, as always, to Bonnie Litschewski Paulson for her splendid editorial work, not least of all on the numerous quotations translated from the German. © Stockholm Institute for Scandianvian Law 1957-2010 270 Stanley L. Paulson: Some Issues in the Exchange between Kelsen and Kaufmann 1 Introduction: Four Rounds in the Exchange Unlike Hans Kelsen, Erich Kaufmann (1880-1972) is not a household name in juridico-philosophical circles. Kaufmann was, however, a prominent figure in the legal community in Wilhelmine and Weimar Germany, and his work in constitutional law and public international law was well known in his own day.2 What is more, he is generally credited with having in effect launched the extraordinary Weimar public law debates,3 from 1926 to the end of the Weimar Republic, seven years later. -
ARISTOTLE and the CONCEPT of LAW John T. Valauri
VALAURI_GALLEYS 5/10/2011 10:10:34 AM DIALECTICAL JURISPRUDENCE: ARISTOTLE AND THE CONCEPT OF LAW John T. Valauri* General theories of law struggle to do justice to the multiple dualities of the law.1 INTRODUCTION Western law, culture, and philosophy thought that they were say- ing goodbye to Aristotle as they entered into modernity, only now to find the ancient philosopher standing in wait as they leave mod- ernity and enter into post-modernity. But what use do we have for Aristotle at this time? He can perform a valuable service for us—he offers a therapy for the “bipolar disorder”2 in contemporary juris- prudence and philosophy.3 This disorder is manifested in the wide- spread tendency to approach and analyze philosophical topics as dueling dichotomies, incapable of resolution or reconciliation. It is all too often assumed at the outset that one is faced with a stark ei- ther/or sort of choice between alternatives, so participants in the philosophical debates arising out of this approach typically take one side of the dichotomy and see it as their task to marginalize and di- minish the other side of the dichotomy.4 H.L.A. Hart diagnosed one case of this disorder in his famous depiction of American jurispru- dence as torn between the noble dream that judges can always *- Professor of Law, Salmon P. Chase College of Law, Northern Kentucky University. B.A., 1972; J.D., 1975, Harvard. 1. JOSEPH RAZ, BETWEEN AUTHORITY AND INTERPRETATION 1 (2009). 2. In this Article, I will use the notion of a “bipolar disorder” in philosophy in a broader way to refer to a more general dichotomy problem common today in approaches to philoso- phical topics. -
NILQ 59 4.Qxd
NILQ (2008) 59(1):91–108 The transcendental, the existential and the ethical: Alexy and Dworkin on the foundation of rights DIMITRIOS KYRITSIS* Lecturer in Law, University of Sheffield 1 Introduction hat do we expect from a theory that professes to furnish a justification for human Wrights? Which goals do we want it to accomplish and which theoretical and practical concerns do we want it to address? These questions are not meant to invite or presuppose a thoroughgoing philosophical pragmatism. Instead, they aim to alert us to the fact that we can make sense of human rights at different levels and from different perspectives – cultural, historical, legal, political or philosophical, to name but a few – and, thus, that, depending on the level of detail our accounts are pitched to and the perspective we adopt, we ought to calibrate our theories accordingly. In other words, before we venture into this fascinating territory, we must be clear about our terms of reference. The primary aim of this paper is to assess Robert Alexy’s recent proposal for a discourse- theoretical justification of human rights.1 Alexy does not seek to justify human rights in terms of political expediency or usefulness. The justification he offers is, as one might say, foundational. His aim is to establish that human rights are firmly anchored in human experience; that we cannot just do away with them whenever it would be inexpedient or less useful to stick to them. For this reason, Robert Alexy lists a demanding set of properties of human rights – as we understand them – that he thinks alternative conceptions of their foundation ought to respect and account for. -
THE PRINCIPLE of LEGAL CERTAINTY in EC LAW Law and Philosophy Library
THE PRINCIPLE OF LEGAL CERTAINTY IN EC LAW Law and Philosophy Library VOLUME 64 Managing Editors FRANCISCO J. LAPORTA, Department of Law, Autonomous University of Madrid, Spain ALEKSANDER PECZENIK, Department of Law, University of Lund, Sweden FREDERICK SCHAUER, John F. Kennedy School of Government, Harvard University, Cambridge, Mass., U.S.A. Former Managing Editors AULIS AARNIO, MICHEAL D. BAYLESt, CONRAD D. JOHNSONt, ALAN MABE Editorial Advisory Board AULIS AARNIO, Research Institute for Social Sciences, University of Tampere, Finland ZENON BANKOWSKI, Centre for Criminology and the Social and Philosophical Study of Law, University of Edinburgh PAOLO COMANDUCCI, University of Genoa, Italy ERNESTO GARZON VALDES, Institut fur Politikwissenschaft, Johannes Gutenberg Universitiit Mainz JOHN KLEINIG, Department of Law, Police Science and Criminal Justice Administration, John Jay College of Criminal Justice, City University of New York NEIL MacCORMICK, European Parliament, Brussels, Belgium WOJCIECH SADURSKI, European University Institute, Department of Law, Florence, Italy ROBERT S. SUMMERS, School of Law, Cornell University CARL WELLMAN, Department of Philosophy, Washington University THE PRINCIPLE OF LEGAL CERTAINTY IN EC LAW by JUHA RAITIO SPRINGER-SCIENCE+BUSINESS MEDIA, B.V. A C.I.P Catalogue record for this book is available from the Library of Congress. ISBN 978-90-481-6264-2 ISBN 978-94-017-0353-6 (eBook) DOI 10.1007/978-94-017-0353-6 Printed on acid1ree paper All Rights Reserved © 2003 Springer Science+Business Media Dordrecht Originally published by Kluwer Academic Publishers in 2003 Softcover reprint ofthe hardcover Ist edition 2003 No part of this publication may be reproduced Of utilized in any form or by any means, electronic or mechanical, inc1uding photocopying, recording or by any information storage and retrieval system, without written permission from the copyright owner. -
LAW, TRUTH, and REASON Law and Philosophy Library
LAW, TRUTH, AND REASON Law and Philosophy Library VOLUME 97 Series Editors: FRANCISCO J. LAPORTA, Department of Law, Autonomous University of Madrid, Spain FREDERICK SCHAUER, School of Law, University of Virginia, U.S.A. TORBEN SPAAK, Uppsala University, Sweden Former Series Editors: AULIS AARNIO, MICHAEL D. BAYLES†, CONRAD D. JOHNSON†, ALAN MABE, ALEKSANDER PECZENIK† Editorial Advisory Board: AULIS AARNIO, Secretary General of the Tampere Club, Finland HUMBERTO ÁVILA, Federal University of South Brazil, Brazil ZENON BANKOWSKI, Centre for Law and Society, University of Edinburgh, United Kingdom PAOLO COMANDUCCI, University of Genoa, Italy HUGH CORDER, University of Cape Town, South Africa DAVID DYZENHAUS, University of Toronto, Canada ERNESTO GARZÓN VALDÉS, Institut für Politikwissenschaft, Johannes Gutenberg Universitat, Mainz, Germany RICCARDO GUASTINI, University of Genoa, Italy JOHN KLEINIG, Department of Law, Police Science and Criminal Justice Administration, John Jay College of Criminal Justice, City University of New York, U.S.A. PATRICIA MINDUS, Università Degli Studi di Torino, Italy YASUTOMO MORIGIWA, Nagoya University, Japan GIOVANNI BATTISTA RATTI, “Juan de la Cierva” Fellow in Law, Faculty of Law, University of Girona, Spain WOJCIECH SADURSKI, European University Institute, Department of Law, Florence, Italy HORACIO SPECTOR, Universidad Torcuato Di Tella, Argentina ROBERT S. SUMMERS, School of Law, Cornell University, U.S.A. MICHEL TROPER, Membre de l’Institut Universitaire de France, France CARL WELLMAN, Department of Philosophy,