1,721,011 research outputs found
Beyond Legal Positivism and Natural Law?
No full textIn contrast to the uncompromising separation between natural law and legal positivism in Kelsen’s work, Hartian and Hartian-influenced legal positivism typically focuses or turns upon the degree to which law and morality occupy discrete, or, in the alternative, intersecting domains; with, broadly, exclusive legal positivists inclined to complete separation, and inclusive (or soft) legal positivists comprehending varying degrees of interconnectedness between law and morality. In this setting, the contention, maintained by inclusive legal positivists, that natural law and positive law may be reconciled and integrated within a single, unified and internally coherent legal positivism, has led to a re-examination of legal theory’s operational terminology. The rigidity of the designations ‘exclusive’ and ‘inclusive’ legal positivism has, accordingly, begun to dissolve and to be subsumed under the more expansive notion of ‘non-positivism’. This is particularly evident in Joseph Raz, where the detachment from, or repudiation of, the definitional categories of legal positivism and natural law seeks to free legal theory from its traditional conceptual moorings and to enable reconsideration of the essence, nature and content of law. The conceptual space in Raz’s work for the re-conceptualisation of elementary questions in legal theory is confronted, through a critical exchange with Robert Alexy, by an insistence upon the continued significance of the irreconcilability between natural law and legal positivism. Raz’s and Alexy’s respective positions arise, initially, from Raz’s 2007 critique of Alexy’s The Argument from Injustice: A Reply to Legal Positivism (2002), and from Alexy’s 2007 response to the Razian critique. The contemporary applicability of, or dissociation from, not only the designations ‘natural law’ and ‘legal positivism’ but also a decidedly Kelsenian legal positivism, with its concomitant Kelsenian antipathy to natural law theories, is instantiated in the exchange between Raz and Alexy. This chapter subjects Alexyan and Razian legal thought to close scrutiny, adopting a perspective in which the Kelsenian legal science of positive law is evident. In so doing, the authors contend that Kelsenian legal positivism has continued pertinence not only for attempts to comprehend law’s contours, character and nature but also for contemporary legal theor
From Wolff to Kelsen: The Transformation of the Notion of Civitas Maxima
No full textA significant part of Kelsen’s work is devoted to the methodological separation of a theory of positive law from natural law. The predominant impression of this process is of a determination to entirely sunder the conceptual framework of positive law from any continuing reliance upon natural law. However, certain of Kelsen’s works involve the appropriation of the notion of civitas maxima from the Jus Gentium Methodo Scientifica Pertractatum (1749) of Christian Wolff. The presence of this notion immediately raises the question of the relationship between Kelsen’s theoretical framework and the specific conception of natural law developed by Christian Wolff. It is through an examination of the transformation of this notion of civitas maxima that an important aspect of Kelsen’s relationship to the natural law tradition becomes apparent. The appropriation will be traced through the initial discussion in Kelsen’s Das Problem der Souveränität und die Theorie des Völkerrechts. Beitrag Zu Einer Reinen Rechtslehre (1920/1928), and its further exposition and development in Kelsen’s 1926 Lecture Course (‘Les Rapports de Système entre le Droit Interne et le Droit International’) at the l’Académie de droit international, in the Hague. In this manner, the significant methodological divergences between a Kelsenian theory of positive law, as a theory of legal monism according primacy to international law, and the Wolffian theory of natural law, as a theory of the law of nations, will become evident. This methodological divergence, however, should not obscure a more than residual affinity between Kelsen and Wolff concerning the cosmopolitical orientation of their thought
The Kelsenian Critique of Natural Law
No full textThis discussion considers Kelsen’s engagement with natural law theories and the contours of his rejection of natural law as a methodologically coherent legal theory. It juxtaposes Kelsen’s refutation of natural law theories with his assertions as to the logical superiority of his legal science of positive law. It also reflects upon not only the ‘objectivity’ of Kelsen’s legal science, which Kelsen elaborates and delineates in contrast to natural law theories and their inherently arbitrary and subjective elements, but also his construction of a ‘value-free’ legal positivism in which the legal order is constituted in the autonomous normative order of positive law. In addition, the authors analyse Kelsen’s position regarding the cognitive operation of the Grundnorm, along with the relationship between the ‘basic norm’ and the theory of levels (Stufenbaulehre), so as to explicate his account of the creation and operation of legal norms and of the simultaneously dynamic and static character of his legal positivism. The authors demonstrate that Kelsen sought, in his denunciation of natural law theories, not only to advance his legal science of positive law but also to safeguard its theoretical and methodological rigour from the dangers of a wholesale return to natural law theories. In this respect, the authors scrutinise Kelsen’s critical engagement with Aristotle, Dante, Althusius, Wolff, Rousseau, Kant, Rickert, Cassirer, Schmitt, Strauss, Verdross and others associated with the natural law tradition. The contemplation of Kelsen’s assault on natural law theories also explores Kelsen’s legal monism vis-à-vis State sovereignty and international law, his thoughts on legal validity and authority, the function of normative imputation in legal positivism, the Neo-Kantianism of the Baden School, the interrelation between norm, sanction and coercion in legal positivism, the State as juridical entity and Kelsenian perspectives on constitutionalism and democracy
From Wolff to Kelsen : Transformation of the Notion of Civitas Maxima
No full textA significant part of Kelsen’s work is devoted to the theoretical and methodological separation of positive law from natural law. The predominant impression of this process is of a determination to entirely sunder the conceptual framework of positive law from any continuing reliance upon natural law. However, certain of Kelsen’s works involve the appropriation of the notion of civitas maxima from Christian Wolff’s Jus Gentium Methodo Scientifica Pertractatum (1749). The presence of this notion raises the question of the relationship between Kelsen’s theoretical framework and the conception of natural law developed by Christian Wolff. It is through an examination of the transformation of Wolff’s notion of civitas maxima that an important aspect of Kelsen’s relationship to the natural law tradition becomes apparent. The appropriation will be traced through the initial discussion of civitas maxima in Kelsen’s Das Problem der Souveränität und die Theorie des Völkerrechts. Beitrag Zu Einer Reinen Rechtslehre (1920/1928), and its further exposition and development in Kelsen’s 1926 Lecture Course (‘Les Rapports de Système entre le Droit Interne et le Droit International’) at the l’Académie de droit international, in the Hague. In this manner, the significant methodological divergences between a Kelsenian theory of positive law, as a theory of legal monism according primacy to international law, and the Wolffian theory of natural law, as a theory of the law of nations, will become evident. This methodological divergence, however, should not obscure a more than residual affinity between Kelsen and Wolff concerning the cosmopolitical orientation of their thought
Going Beyond Counting First Authors in Author Co-citation Analysis
Full text linkThe present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation
counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings
are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that
only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into
account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
Variations on the Author
Full text link“Variations on the Author” discusses two of Eduardo Coutinho’s recent films (Um Dia na Vida, from 2010, and Últimas Conversas, posthumously released in 2015) and their contribution to the general question of documentary authorship. The director’s filmography is characterized by a consistent yet self-effacing form of authorial self-inscription: Coutinho often features as an interviewer that rather than express opinions propels discourses; an interviewer that is good at listening. This mode of self-inscription characterizes him as an author who is not expressive but who is nonetheless markedly present on the screen. In Um Dia na Vida, however, Coutinho is completely absent form the image, while Últimas Conversas, on the contrary, includes a confessional prologue that moves the director from the margins to the center of his films. This article examines the ways in which these works stand out in the filmography of a director who offers new insights into the notion of cinematic authorship
Appropriate Similarity Measures for Author Cocitation Analysis
Full text linkWe provide a number of new insights into the methodological discussion about author cocitation analysis. We first argue that the use of the Pearson correlation for measuring the similarity between authors’ cocitation profiles is not very satisfactory. We then discuss what kind of similarity measures may be used as an alternative to the Pearson correlation. We consider three similarity measures in particular. One is the well-known cosine. The other two similarity measures have not been used before in the bibliometric literature. Finally, we show by means of an example that our findings have a high practical relevance.information science;Pearson correlation;cosine;similarity measure;author cocitation analysis
Dispelling the Myths Behind First-author Citation Counts
Full text linkWe conducted a full-scale evaluative citation analysis study of scholars in the XML research field to explore just how different from each other author rankings resulting from different citation counting methods actually are, and to demonstrate the capability of emerging data and tools on the Web in supporting more realistic citation counting methods. Our results contest some common arguments for the continued
use of first-author citation counts in the evaluation of scholars, such as high correlations between author rankings by first-author citation counts and other citation
counting methods, and high costs of using more realistic citation counting methods that are not well-supported by the ISI databases. It is argued that increasingly available digital full text research papers make it possible for citation analysis studies to go beyond what the ISI databases have directly supported and to employ more
sophisticated methods
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