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articles in english
1. Proceedings of the XXIII World Congress of Philosophy: Volume > 54
Anna Baka The Core of Legal Rights as a Logical Necessity: From Wittgenstein’s Logic of Language to Phenomenology and Aristotle’s Induction
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Analytical jurisprudence and the legal mainstream perceive legal rights in an interactionist fashion, pursuant to a right-obligation duality. The Paper suggests that this is principally because legal positivism and the analytical Anglo-Saxon legal tradition ground their theories on logical positivism and the Wittgensteinian premise that meaning is produced and asserted in social use, i.e. both consensually and contextually. The paper suggests that there is a surplus of meaning which exists beyond social use and which cannot be conceptualized within the sociolinguistic confines of Wittgenstein’s logic of language. This surplus of meaning corresponds to the essential core of legal rights, which, following Aristotle’s induction and philosophy of the essences, constitutes a necessary property and τὸ τί ἦν εἶναι of legal rights, namely a state of affairs or a state of being that cannot be altered without their necessary breach or, indeed, the negation of their very meaning. The Paper discusses the shortcomings of the Wittgensteinian approach and revisits the philosophical foundations of legal rights by employing Aristotle’s induction and theory of the essences, which the Paper connects to the phenomenological method and particularly Ricoeur’s hermeneutics and Husserl’s transcedental phenomenology. This is a process of abstraction and insight, which aspires to induce a rational revisiting of the general theory of legal rights and address the surplus of meaning that Wittgensteinian logic leaves semantically uncovered.
2. Proceedings of the XXIII World Congress of Philosophy: Volume > 54
Dawid Bunikowski How to Enhance Responsibility? What about the Effects of Cognitive Enhancement on Moral and Legal Responsibility?
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The paper concerns a legal-philosophical and legal-theoretical (but in fact more interdisciplinary) problem of so called cognitive enhancement and of what to do with influence of neuroscience on legal and moral responsibility. A problem of responsibility in the law is treated as one of the most important themes in jurisprudence. We say that some people are responsible for behavior (e.g. the competent, adults). But we must seek the limits of the idea that responsibility “tracks” mental capacity. According to the paper assumptions, we should consider two fundamental questions. The first, have some professionals such as surgeons, soldiers, pilots a responsibility (duty) to cognitively enhance themselves (by e.g. drugs)? The second, if so, after the enhancement should they be acquired by greater responsibilities (greater standard of care)? I see some dangers for morality, freedom, human rights in the case of two positive answers for these questions. I analyze some projects of recommendation of the law change. I strictly highlight really potential axiological problems, too.
3. Proceedings of the XXIII World Congress of Philosophy: Volume > 54
Thomas Bustamante Legal Philosophy in the Courtroom: Can Positivism Explain Theoretical Disagreements?
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The paper examines the challenge that Ronald Dworkin poses to positivism when he asserts that legal discourse often comprises theoretical disagreements about the foundations of law, as well as Scott Shapiro’s answer that these disagreements, although legitimate, can be reconstructed as meta-interpretive disagreements about the proper interpretation of the legal system. Though Shapiro’s answer is partly correct, if we distinguish between ‘conceptual’ and ‘meta-interpretive’ theoretical disagreements it becomes clear that this answer fails to save positivism from Dworkin’s objection because it is unaware of the existence of theoretical disagreements of the ‘conceptual’ kind. Positivism is wrong, therefore, because it misses this important connection between legal philosophy and legal practice.
4. Proceedings of the XXIII World Congress of Philosophy: Volume > 54
Yezid Carrillo De La Rosa Law and Morality in Legal Theory and Contemporary Constitutionalism
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As is well known, the two great traditions of legal thought, the positivist and anti-positivist, baked beans around the discussion of the theory of bonding and the theory of separation. The central thesis of current positivism, which is emblematic Hart, is summarized in the thesis of the conceptual separation between law and morality and their acceptance or otherwise mark the dividing line between positivists and non-positivists. But usually the term moral can be used in a multitude of ways without being aware of it, which sometimes leads to different things being discussed on the belief that talking about the same, as a result, the first thematic area of This essay is devoted to clarify the sense that it used the term “moral” in the context of legal theory. Next, study the most important manifestations of the central thesis of positivism (decoupling) and anti-positivism (tie), then try to carry out an approach to the problem that arises as a result of the inclusion of moral standards in the current constitutionalism.
5. Proceedings of the XXIII World Congress of Philosophy: Volume > 54
Serkan Golbasi Ernst Bloch on Natural Law and Human Nature
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Natural law is generally regarded as a part of bourgeoisie ideology in both Marx and Engels’ thought and accordingly by other Marxist thinkers. Ernest Bloch’s somewhat sympathetic approach to natural law is an exception that deserves to argue about and evaluate. According to Bloch, natural law has an unrealized ideal for human dignity. A radical natural law can be founded upon the not yet determined nature of human beings. For Bloch, human nature is not universal and a-historical but it is changing and future-oriented.
6. Proceedings of the XXIII World Congress of Philosophy: Volume > 54
Eleftherios Karampilas Natural Law: From the Ancient Greek City-state to the First Constitutional Attempts of the Greek Revolution
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In a period of the European history when property, trade, economic development and capitalism (were in the forefront of the intellectual progress, Greeks, despite their past ideas on natural law, could not have desired anything but the same philosophical foundations that supported the political, economic and social demands of the uprising new classes. These philosophical foundations transformed the notion of natural law into the notion of natural rights, influencing the constitutional texts of the newly established Greek state. Thus, the ancient idea of natural law in close correlation with the pursuit of virtue, faded away allowing the, relatively, new concept of natural rights to find its way to the texts of the new constitutions, assuming the role of a protective wall against the demands of the state.
7. Proceedings of the XXIII World Congress of Philosophy: Volume > 54
Yigong Liu Traditional Chinese Legal Philosophy and its Modernization
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China has a long history of legal tradition. Traditional Chinese legal philosophy played an important role in ancient Chinese society and even today it still has a strong influence. Actually, China is experiencing legal modernization, and we should pay attention to our local legal resources and take into account our legal heritage. Though China should learn from the experience of the West, it is also necessary to consider her conditions and reality, rather than following the West blindly. At first, the paper makes a general survey on legal thoughts of Confucianism, Legalism, and Taoism. After these preliminary remarks, the paper discusses the traditional Chinese legal philosophy and the process of China’s legal modernization.
8. Proceedings of the XXIII World Congress of Philosophy: Volume > 54
Stefan Munteanu Aspects Concerning the Philosophy of the European Community Law
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An approach of the European Community Law from a philosophical point of view had a great following in the last half of the 20th century, with good results in the creation of some real strategies about the integration. That is why some general, traditional wise values were assumed as basic for the European Community Law. An important aspect in the foundation of a new practice of the science of law, based on the values of philosophy, emerges from the fact that the community law is different both from the science of general law and international law. The new directions of the community law were adopted by the sovereign states, which signed institutive Community treaties. The philosophical approach is that by signing the community treaties, those sovereign states accept to transfer a certain part of their national sovereignty to the newly created Community institutions. On the other hand the transfer of sovereignty must not be understood as a threat to the national integrity, but as a chance of integrating into larger and more efficient structures. From this point of view, the present work initiates a debate upon the main characteristics of the community law, the way in which the concepts of political and juridical philosophy contribute to the creation of the new mechanisms and procedures of the European community law. Having a clear image of these aspects means a great importance for the success of Romania’s accession.
9. Proceedings of the XXIII World Congress of Philosophy: Volume > 54
Nadire Ozdemir Ethics and the Confidentiality Rule for Lawyers: Can Ethical Norms be an Excuse for Breaching the Rule?
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The confidentiality rule ensures lawyers not to reveal their client’s confidence that has been learnt through their professions. However sometimes confidentiality can involve to hide serious dangers. This is a small field work that searches theoretical basement of morality-centered or law-centered lawyers. The research question of this study is “the role of ethics/ethical norms in the breach of the confidentiality rule between the lawyer and her client”. In order to understand this, I have specified three sub-topics: Ethics, dilemma and the perception of profession. What does it mean ethics for lawyers, how do they act in ethical dilemmas and on what grounds they are breaching or they would breach the confidentiality rule were the relevant questions for my research question.
10. Proceedings of the XXIII World Congress of Philosophy: Volume > 54
Iraklis Pantelidakis Ronald Dworkin’s Ethical Individualism: Metaphysical and Metaethical Commitments
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We focus on Dworkin’s ethical individualism because it is the basic substrate of his moral and political philosophy. Ethical individualism consists of two main principles; that of equal concern and respect, and the special responsibility thesis. We consider that both principles hold certain metaphysical origins. The principle of equal concern retains a connection with the notion of natural equality. This point is elegantly expressed in an earlier paper of Dworkin, who comments on Rawls’ original position. In that paper, Rawls’ veil of ignorance is substituted by Dworkin’s deep theory. Ronald Dworkin unsuccessfully tries to persuade that this deep theory is metaphysically neutral. Moreover, the principles of ethical individualism are not neutral in a metaethical sense. Dworkin calls upon a general agreement on his principles. According to “Objectivity and Truth” the two principles are I-moral propositions. Their weight rests on their form as “rational intuitions”. Dworkin’s metaethics stem from Moore’s intuitionism and this is clear in “Objectivity and Truth” where he defends an “extended” non-naturalistic moral realism. The problem is that this extended realism includes a priori truths which belong to some form of idealism. Dworkin replaces the Archimedean platform with an Euclidean one, but he does not explicitly state it because of his fear of Platonism.
11. Proceedings of the XXIII World Congress of Philosophy: Volume > 54
Karla Pinhel Ribeiro Law and Violence in Hannah Arendt and Walter Benjamin
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The paper investigates the concepts of law and violence in Hannah Arendt and Walter Benjamin, especially in their works On violence and Critique of violence. The main objective of the research is to find similarities and differences between the definitions of these concepts in the thought of these philosophers. The main thesis of the research is the understanding that concepts of law and violence for Hannah Arendt are very different and the other hand, concepts of law and violence for Walter Benjamin apparently are the same.
12. Proceedings of the XXIII World Congress of Philosophy: Volume > 54
Grigorii Potapov The Paradigm of the Third Legal Revolution in the Initial Epoch of Post-modern Globalisation
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The purpose of this paper, delivered at the Twenty Third World Congress in Philosophy, held in August 2013, hosted by National & Kapodistrian University of Athens (Greece), is to propose a new eco-centric legal paradigm. This paradigm would constitute the fundamental base for the creation of an effective, global, legal mechanism based on a new legal system. The normative framework of this legal system will be consistent with convergence, unification and dissemination of principles of international law and worldwide national legal systems. Over the last seven thousand years, the law has undergone the two legal revolutions: socio- centric and person-centric which served the purposes of particular historical periods, such as, for the regulation of slavery and feudal state systems and the era of Modernistic societies. A third legal revolution has been necessitated by the globalisation following post-modernism. Such change would establish a new legal framework. This would regenerate modern processes of our civilization and serve to prevent a global financial crisis in the future. The proposed new eco-centric legal paradigm should become a dominant base for the third legal revolution. This legal paradigm would promote an imperative of Nature in the law and balance the hierarchy of power and wealth.
13. Proceedings of the XXIII World Congress of Philosophy: Volume > 54
Caroline Strömberg On Seemingly Inconsistent Moral Statements in Swedish Environmental Law
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It is stated in The Swedish Environmental Code that (1) Nature is worthy of protection, and (2) Humans have the right to modify and exploit nature. (1) can be interpreted as that nature has both extrinsic value (for the sake of humans) and intrinsic value (for the sake of itself). This may imply that damaging nature is morally wrong, as long as it isn’t necessary for humans’ survival. (2) can be interpreted to imply that it is allowed to damage nature even if it isn’t necessary for humans’ survival. The interpretation is based on the fact that the purpose of the Code is to promote sustainable development, which is often regarded not involve only ecological, but also social and economic dimensions. Given that these interpretations of (1) and (2) are correct, the Code recognizes humans a right that, when exercised, violates the attributed intrinsic value of nature, which is problematic. If the interpretations (or the ideas of what they imply) are incorrect, there is still something to learn. There are often signs of environmental law, both in Sweden and internationally, attributing nature intrinsic value. This apparently has consequences, and requires great carefulness.
14. Proceedings of the XXIII World Congress of Philosophy: Volume > 54
Norman K. Swazo Appropriating Islamic Law for International Law?
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In institutional settings affecting the formulation and implementation of international foreign and security policy, nation-states are influenced by Western standards of jurisprudence without explicit concern for religiously grounded legal frameworks (e.g., canon law in Roman Catholicism; halacha in rabbinic Judaism; shari’ah in Islam). The question at issue here is whether there is a role for Islamic law in the formulation of international law, given recent literature examining this conjunction. For some, cultural symmetry requires attention to Islamic law, e.g., the Islamic law of nations (siyar), in the same way Western modernity evolved contemporary international law out of a concept of a “law of nations” (jus gentium). In a historical period of asserted fundamentalist Islamic ideology as well as post-9/11 neo-conservative political ideology, there is ample need for negotiation of culture, including philosophical foundations of law, in which case attention to Islamic jurisprudence may well be a positive development to advance the cause of an evolving international legal order.
15. Proceedings of the XXIII World Congress of Philosophy: Volume > 54
Iliana Carolina Vanegas Fortich, Yezid Carrillo de la Rosa Hart and Dworkin Debate about Judicial Discretion
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This recreates the current debate facing the legal positivism, which argues for judicial discretion in Dworkin’s thesis on the possibility of a single correct answer in the court decision. Our purpose is to identify the most significant topics and the way the debate has been going on now in the national and international level. This should be considered, as well as a preview of the research on theoretical models of interpretation and interpretative practice of law in Colombia, we are starting with the inter-group theory and philosophy of law.
16. Proceedings of the XXIII World Congress of Philosophy: Volume > 54
Marina Velasco Conflicts between Basic Rights and Balancing: Why should Judges Abandon the Deontological Stance?
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The notion that the application of basic rights requires “balancing” is widely and increasingly accepted. Balancing judgments are ever more frequently used in judicial decisions, particularly in constitutional courts and especially in contemporary supra-national human-rights courts. Many jurists deem that balancing is the only possible method to arrive to a rational decision in cases of conflict between basic rights. I assert that this kind of conflict between principles has the same structure of moral conflicts. And, as is the case with moral conflicts, the way conflicts are solved will depend on the underlying concept of practical reasoning. I describe the two basic patterns that practical reasoning may follow in situations of conflict between moral principles in general and argue against the idea that balancing is the most appropriate procedure to cope with the conflict, either in general terms or in juridical argumentation in particular.
17. Proceedings of the XXIII World Congress of Philosophy: Volume > 54
Jouni Westling Constructing Penology for International Criminal Law
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Instead of developing its own theoretical framework, international criminal law has adopted the central doctrines and concepts of traditional penology that was initially developed to address the national criminal law. Even though norms and institutions relating to international criminal law have been widely debated, justification of the actual punishment practices has not received similar attention. This is an implication of the narrow perception of justifying punishments – regarding legitimate norms and institutions as a sufficient reason for punishment. This paper argues that the traditional penology, especially in form of theories of punishment, is both inapplicable to the circumstances of international criminal law and it has been misused in the sphere of international criminal law by postulating the theories as justified by definition and utilizing deterrence and retribution as intrinsic values of punishment. An adequate penology for international criminal law should be built on other premises such as emphasizing the political transition and the victims of atrocities.
18. Proceedings of the XXIII World Congress of Philosophy: Volume > 54
Baosheng Zhang The Value Basis of Evidence Rules
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Law is in nature an evaluation of conflicting interests; the application of legal rules is paraphrasing inherent value-judgment of law, and value-balancing is indispensable in order to make up for the incapability of formal reasoning. Therefore, law not only reflects value-preferences on the ontology level of what it is, but also embeds value-calculation on the methodological level of how it is applied. Evidence rules, as an important part of legal system, certainly have their own value foundation. Fact-finding is an epistemic activity in court, and fact-finder determines facts through the “mirror of evidence”. Therefore, evidence rules which regulate the process of fact-finding can be seen as ‘court epistemology’. The pursuit of truth and pursuit of value together constitute the justifications for establishing certain evidence rules, and these are reflected in evidence rules’ value basis. Evidence rules shall represent the values shared by the great majority of people. Among these fundamental values, the four most universal ones are accuracy, justice, harmony and efficiency, which constitute the value-backbones of evidence law. The Four Value-Backbones serve as guiding standards for evidentiary legislation. They are also the criteria for applying evidence rules, and may effectively control judges’ judicial discretion in evidentiary adjudication.
articles in french
19. Proceedings of the XXIII World Congress of Philosophy: Volume > 54
Jacques Chatué Réflexions philosophico-juridiques sur les alternatives de l’appropriation africaine du droit
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Longtemps après leur accession à l’Indépendance, nombre de pays africains ne vivent guère de leur propre droit. Au-devant d’un droit d’emprunt, ainsi que d’une tendance lourde à maintenir les peuples dans la sujétion juridique tout en clamant l’impératif catégorique des Droits de l’homme, on ne saurait caresser ni le rêve idéologique d’une éviction pure et simple, ni celui, irréaliste, d’une adoption en l’état. Les présentes réflexions tentent d’articuler le sens d’une troisième démarche, au reste déjà en cours: celle de l’appropriation du droit. Comment l’envisager? Et d’abord pour qui?
articles in german
20. Proceedings of the XXIII World Congress of Philosophy: Volume > 54
Kyriakos N. Kotsoglou Ist die Menschenwürde antastbar? Psssst ... Unter Umständen: Ja. Zu einer kontextualistischen Auflösung der Menschenwürdeparadoxie
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Die hier behandelte Problematik betrifft die Rechtsprechung des deutschen Bundesverfassungsgerichts, das neulich zur Moralskepsis gelangen zu sein scheint. Diese Skepsis besteht in dem Tenor des Urteils, das Art. 14III des Luftsicherheitsgesetzes für nichtig erklärte, so dass z.B. ein von Terroristen gekapertes Passagierflugzeug unter keinen Umständen abgeschossen werden darf – selbst wenn es gegen ein Atomkraftwerk fliegt. Die Menschenwürdegarantie erhebe dem Bundesverfassungsgericht nach einen Absolutheitsanspruch: Sie sei folgenindifferent. Dies führt dazu, dass der Staat, der den Schutz der Menschenwürde gewährleistet, passiv zuschauen soll, wie er im Namen der Menschenwürde vernichtet wird. Im Anschluss an Michael Williams wird eine theoretische Diagnose der Menschenwürdeparadoxie geliefert, indem die theoretischen Vorannahmen, worauf dieser Absolutheitsanspruch beruht, aufgedeckt werden und sich als unhaltbar erweisen.