By Aleksander Peczenik (auth.)
ISBN-10: 1402087292
ISBN-13: 9781402087295
ISBN-10: 1402087306
ISBN-13: 9781402087301
'This is an overview of a coherence concept of legislations. Its simple principles are: average aid and weighing of purposes. the entire relaxation is commentary.’
These phrases first and foremost of the preface of this publication completely point out what On legislation and cause is ready. it's a concept concerning the nature of the legislation which emphasises the position of cause within the legislations and which refuses to restrict the position of cause to the applying of deductive logic.
In 1989, whilst the 1st variation of On legislation and cause seemed, this ebook used to be floor breaking for a number of purposes. It supplied a rationalistic thought of the legislation within the language of analytic philosophy and in accordance with a radical realizing of the implications, together with technical ones, of analytic philosophy. That used to be no longer an seen mixture on the time of the book’s first visual appeal and nonetheless isn't really. the result's an analytical rigor that's frequently linked to positivist theories of the legislation, mixed with a philosophical place that isn't average legislation in a strict experience, yet which stocks with it the emphasis at the position of cause in picking what the legislation is. If just for this infrequent blend, On legislation and cause nonetheless merits cautious study.
On legislations and cause additionally foreshadowed and prompted a improvement within the box of criminal good judgment that might ensue within the nineties of the 20th century, specifically the advance of non-monotonic (‘defeasible’) logics for the research of criminal reasoning. within the new advent to this moment variation, this element is explored in a few extra detail.
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Additional info for On Law and Reason
Example text
The preparatory materials ought not to entirely dominate the decision-making. 7. Division of Power. A division of power promotes the legal certainty, the rights, the free majority decisions and the political representation of the interests of the electorate. A monopoly of power is always a threat to freedom of an individual. Not even the parliament should have the whole public power. Independent courts, relatively independent civil service, the division of power between the state and municipalities etc.
The process of in which a provision customarily loses its validity takes some time. At first, the courts are inclined to frequently “forget” the provision, without entirely precluding the legal possibility of its application in other cases. They would perhaps call it “half-valid”, if the legal language permitted them to do so. Instead, one calls the provision “obsolete”. Later, however, one may find that no reason any longer justifies such an uncertainty. The provision has definitively lost validity through desuetudo.
To make the choice, the court may consider the content of the contract, the situation at the time it was concluded, later facts and “other circumstances”. Weighing and balancing of all this requires a value judgment. 7 Obsolete Laws and Desuetudo In some cases, one must answer the question whether a certain statutory provision is valid or applicable at all. , that A produces sausages containing some controversial chemicals, and does not ask proper authorities for approval according to the law. B buys a sausage.