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Revus - številka 45, letnik 2021
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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Paulina Konca
Creating law of interpretation: a risky or fundamental step?
In some countries there is no legislation regulating legal interpretation, but in others, various interpretive tools and guidelines are regulated by the legislature. The regulation of interpretation is primarily considered an opportunity to increase legal certainty. Some authors note, however, that statutory regulation of legal interpretation involves certain risks, such as the danger of violating the principle of separation of powers. Questions also arise as to whether the legislator has the right to bind future legislators, whether the law of interpretation can have retroactive effect, and how to interpret the interpretative provisions. This paper addresses these challenges. In discussing this matter, it refers to the regulations of four countries: Australia, Spain, Ireland, and Poland. Each of them serves as an example of adopting different solutions to the problem of interpretation regulation. The main argument is that the legislature can regulate interpretation, either through direct or indirect legislative intervention. To a large extent, law of interpretation can enhance uniformity in a preventive manner and restore disturbed certainty by providing mechanisms to resolve serious discrepancies in judicial practice. It can also serve as a safeguard for other principles and values.
Brian H. Bix
Coercion, function, and the “why” of law
In Coercion and the Nature of Law, Kenneth Einar Himma offers a methodical analysis of the role of coercion in understanding the nature of law. Himma’s work combines conceptual analysis, artifact theory, and functional analysis, ultimately concluding that for a social system to be “law” it must include coercive sanctions. The present article offers an overview of Himma’s arguments, ultimately focusing on the discussion about law’s function. In considering the problem of law’s function, the article contrasts Himma’s view with the views of John Finnis and Mark Greenberg.
Thomas Bustamante
Should the Coercion Thesis really be defended as a conceptual claim?
Kenneth Himma’s Coercion and the Nature of Law offers a forceful response to the claim that coercion is an ancillary, rather than a conceptually necessary, property of law. It matters for Himma that the Coercion Thesis is defended as a conceptual claim, although his metaphysics purports to be a “modest” conceptual analysis in Frank Jackson’s sense. In this comment I have no argument against the Coercion Thesis, and I grant that Himma provides a successful reply to the skepticism about coercion that permeates the jurisprudence of H.L.A. Hart and Joseph Raz. Nonetheless, I believe that this thesis cannot be defended with the methodology that Himma suggests. I challenge Himma’s interpretation of Jackson (which claims that it requires one to start with lexical meanings and “canons” of ordinary language) and argue that his argument for the coercive character of international law only works because it is based on a pragmatic argument about empirical features of social practices. After explaining this objection, I hold that other methodologies, like Dworkin’s interpretivism (if interpreted as endorsing an inferentialist theory of meaning), can provide a more plausible account of the coercive character of law.
Frank Jackson
Conceptual analysis and the Coercion Thesis
In chapter two of Coercion and the Nature of Law, Kenneth Himma sets his defence of the Coercion Thesis – the thesis that it is a conceptual truth, and not merely a practical necessity, that a legal system contains sanctions – within an account of the nature of conceptual analysis. I discuss his account, and the nature of conceptual analysis more widely, explaining why I follow Himma in accepting the Coercion Thesis. I conclude with a short discussion of where I think he misunderstands the distinction between modest conceptual and immodest conceptual analysis.
Paolo Di Lucia in Lorenzo Passerini Glazel
The first and the last word
In his book Coercion and the Nature of Law Himma proposes a conceptual analysis of law defending what he calls the Coercion Thesis. Himma’s approach to conceptual analysis is articulated in two steps. The first step is what Himma calls an “empirical observation” of “ordinary intuitions” as they are manifest in the “contingent linguistic conventions for using the relevant concept-term” in “ordinary talk.” The second step consists in identifying “the philosophical assumptions about the metaphysical nature of a thing to which the corresponding concept-term refers.” Our remarks are not intended to question the Coercion Thesis (which, on the contrary, they can possibly corroborate); rather, they intend to show that grounding conceptual analysis exclusively on the canons of ordinary usage of words and on the philosophical assumptions of an undefined and contingent linguistic and cultural community to which the last word is given is not free from risks.
Anna Pintore
Which coercion, which method, which normativity?
The author, like Himma, conceives law as essentially coercive. However, she maintains that his Coercion Thesis lends itself to various criticisms. She also expresses doubts about his views on conceptual analysis and his conclusions regarding the normativity of law. Finally, she believes that Himma provides a misleading account of Hart’s ideas on the relationships between law and force.
Pablo A. Rapetti
Law’s function, descriptive conceptual analysis, and legal positivism
Coercion and the Nature of Law, by Kenneth Himma, claims to be an essay in descriptive conceptual analysis and there are good reasons to also take it as an essay in legal positivism. These amount to and imply certain methodological commitments. In this article I explore the compatibility between such commitments and Himma’s elaboration on the conceptual relation between law and coercion. The result will be that those commitments are not thoroughly honoured, as Himma’s argument moves from the descriptive to the normative when making the case for law’s “conceptual” function being peacekeeping and when fleshing out what sort of reasons for action the law provides.
Kara Woodbury-Smith
Legal normativity in Kenneth Einar Himma’s Coercion and the Nature of Law
In Coercion and the Nature of Law (CNL), Kenneth Einar Himma defends his Coercion Thesis, which states: the authorisation of coercive enforcement mechanisms is a conceptually necessary feature of law qua legal system. In this discussion, I engage with Himma’s writings on legal normativity, on which he relies to support his Coercion Thesis. The conclusions in CNL regarding legal normativity are established in Himma’s earlier writings where he defends what I call the Strong Normativity Thesis. This thesis claims that legally valid norms necessarily provide their subjects with objective reasons for action. It stands in contradiction to what I call the Weak Normativity Thesis, which maintains that legally valid norms claim to provide their subjects with objective reasons for action. Himma’s account of legal normativity may support his Coercion Thesis, but, as I will argue, it should not be wholly embraced. I will first give a brief account of the claims that ground Himma’s Coercion Thesis. Then I will unpack Himma’s account of legal normativity and explain how it supports his Coercion Thesis. I will finally explain why I am hesitant to accept Himma’s account of legal normativity.