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Revus - številka 34, letnik 2018

Revus

Revus je prva revija za ustavno teorijo in filozofijo prava na Zahodnem Balkanu. Z večjezičnostjo se ponuja tudi kot edini regionalni pravni forum. Strogi izbirni postopek in mednarodna indeksiranost vsebine pa zagotavljata kakovost in odmevnost v njej objavljenih razprav in člankov.

Strokovna revija
Andrej Kristan
Luka Burazin
Matija Žgur
Klub Revus - Center za raziskovanje evropske Ustavnosti in demokracije
Lawrence Alexander (San Diego), Robert Alexy (Kiel), Manuel Atienza (Alicante), Lidija Basta Fleiner (Beograd), Petar Bojanić (Beograd), Bartosz Brożek (Krakow), Eugenio Bulygin (Buenos Aires), Pierluigi Chiassoni (Genova), Timothy Endicott (Oxford), Riccardo Guastini (Genova), Kenneth Himma (Seattle), Eric Millard (Paris), François Ost (Bruxelles), Ivan Padjen (Rijeka), Marijan Pavčnik (Ljubljana), Ciril Ribičič (Ljubljana), Branko Smerdel (Zagreb), Andraž Teršek (Koper), Michel Troper (Paris), Jan Woleński (Krakow), Boštjan M. Zupančič (Ljubljana)
Matej Avbelj, Bojan Bugarič, Karine Caunes, Bruno Celano, Paolo Comanducci, Luís Duarte d'Almeida, Franc Grad, Stefan Haussler, Giulio Itzcovich, András Jakab, Rajko Knez, Arne Mavčič, Marko Milanović, Luka Omladić, Dennis Patterson, Giorgio Pino, Francesca Poggi, Veronica Rodriguez-Blanco, Juan Ruiz Manero, Vasilka Sancin, Dale Smith, Maja Smrkolj, Vojko Strahovnik, Antal Szerletics, Katja Šugman Stubbs, Dominika Švarc, Massimiliano Vignolo

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Ricardo Caracciolo

Ricardo Caracciolo

A dilemma regarding the nature of norms

Most philosophical theories generally accept a set of ideas concerning the nature of norms together with a certain conception of action that can be traced back to Hume. These ideas can be expressed clearly through several theses that are notoriously plausible. On the one hand, there is the thesis that norms, and the duties constituted by norms, are objective in a certain sense, while on the other hand, there is the thesis that the concept of “norm” implies the possibility of complying (or not complying) with the relevant normative requirements. The problem is that these theses cannot be held simultaneously, thus giving rise to a genuine dilemma. This paper explores several ways of avoiding the dilemma, and argues that they are all ultimately unsuccessful. | The Spanish original of this paper was published in Doxa. Cuadernos de filosofía del derecho (2008) 31: 91–104.

Brian H. Bix

Brian H. Bix

Kelsen, Hart, and legal normativity

This article focuses on issues relating to legal normativity, emphasizing the way these matters have been elaborated in the works of Kelsen and Hart and later commentators on their theories. First, in Section 2, the author offers a view regarding the nature of law and legal normativity focusing on Kelsen's work (at least one reasonable reading of it). The argument is that the Basic Norm is presupposed when a citizen chooses to read the actions of legal officials in a normative way. In this Kelsenian approach, all normative systems are structurally and logically similar, but each normative system is independent of every other system – thus, law is, in this sense, conceptually separate from morality. Second, in Section 3, the author turns to Hart's theory, analyzing the extent to which his approach views legal normativity as sui generis. This approach raises questions regarding what has become a consensus view in contemporary jurisprudence: that law makes moral claims. The author shows how a more deflationary (and less morally-flavored) understanding of the nature of law is tenable, and may, in fact, work better than current conventional (morality-focused) understandings.

Jan Woleński

Jan Woleński

Deontic sentences, possible worlds and norms

This paper introduces a non-linguistic theory of norms. The proposal is motivated jointly by Jørgensen’s dilemma and Black’s objection to the better-known linguistic theories of norms. The argument is structured as follows. The author starts by defining deontic sentence and deontic system. He then applies Kripke’s possible world semantics to the analysis of deontic language, before he presents the above-mentioned motivations for conceiving of norms as non-linguistic entities. One such conception is defended in the second half of the paper, where norms are identified with decisions of some normative authority. The author shows how this notion of norm serves both, an intuitive and a formal analysis of normative regulation. Together with the notion of normative function as its formal counterpart, this notion of norm permits one to explain logical relations between deontic sentences with no need to recur to any special semantics or logic of norms. | This is a corrected reprint of the text originally published in Reports on Philosophy 6 (1982):65–73.

Jesús Vega

Jesús Vega

Legal philosophy as practical philosophy

My purpose in this paper is to make a case for the strictly philosophical nature of our discipline, legal philosophy. I first take a prior stance on the issue of what philosophy is in general and outline some premises for the definition of philosophical rationality. This then leads me to critically examine Bobbio’s dichotomy between jurists’ legal philosophy and philosophers’ legal philosophy. It is essential to reformulate the relationships between legal philosophy as a “special” or “regional” discipline as opposed to “general” philosophy. So thirdly, I re-examine this problem using the distinction between concepts of law and ideas in law. Fourthly, I defend the thesis that, when ascertaining the type of philosophy the philosophy of law is, the most decisive factor is not so much (or not only) the relationship between philosophy of law and philosophy in general as, more importantly, the relationship between it and law itself. I argue that the nature of law itself makes its practice inevitably and ineluctably associated with philosophical ideas and conceptions. This practical view of law is tightly bound with a view of legal philosophy as a practical philosophy, and this is the main thesis I shall defend here. Different expressions of this practical view of law can be found in prominent contemporary authors who go beyond the dichotomy of legal positivism-natural law (such as Nino, Alexy, Dworkin, Atienza). The essential feature which I regard ties philosophy of law to the condition of some “practical philosophy” is the role played by the concept of value, i.e. the centrality and pre-eminence of its evaluative dimension.

Juan Pablo Mañalich R.

Juan Pablo Mañalich R.

The structure of criminal attempts

The paper offers a conception of criminal attempts, grounded upon an analytically oriented theory of norms that identifies the wrongfulness-deficit of the behaviour imputable to the agent as its differentiating mark. Such ‘offense-imperfection’ is explained as a lack of full performative congruence between the objective configuration of the agent’s behaviour and its declarative value. This is then related to the debate regarding the problem of so called ‘outcome luck’. The argument so displayed makes recognizable the centrality of the concept of dolus for the clarification of the concept of attempt, as well as the sufficiency of dolus eventualis as the relevant ‘fault’ criterion.

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