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This book explores the interrelation of facts and norms. How does law originate in the first place? What lies at the roots of this phenomenon? How is it preserved? And how does it come to an end? Questions like these led Georg Jellinek to speak of the "normative force of the factual" in the early 20th century, emphasizing the human tendency to infer rules from recurring events, and to perceive a certain practice not only as a fact but as a norm; a norm which not only allows us to distinguish regularity from irregularity, but at the same time, to treat deviances as transgressions. Today, Jellinek's concept still provides astonishing insights on the dichotomy of "is" and "ought to be", the emergence of the normative, the efficacy and the defeasibility of (legal) norms, and the distinct character of what legal theorists refer to as "normativity". It leads us back to early legal history, it connects anthropology and legal theory, and it demonstrates the interdependence of law and the social sciences. In short: it invites us to fundamentally reassess the interrelation of facts and norms from various perspectives. The contributing authors to this volume have accepted that invitation.
Sommario
On Jellinek's "Two Sides" of the State.- On Jellinek's Concept of a Normative Force of the Factual.- A Positivist View on the Normative Force of the Factual.- The Normative Force of the Factual: A Doctrinal Perspective.- The Normative Force of the Factual: A View from International Law.- The Normative Force of the Factual in Analytical Perspective.- The Fact of Norms.- The Factual Force of the Normative.- "Is" and "Ought" and the Problem of Normativity in Hans Kelsen.- Facts and Law.- Reflections on Law and Practical Reasons.- On Normativity.- Deflating Normativity.- Law and Force.- ShillongTacit Knowledge and the Shibboleth of law: A Deconstructive Intersection between Fact and Norm.
Info autore
Nicoletta Bersier Ladavac, Thémis, Centre d'Etudes de Philosophie du droit, de Sociologie du droit et de Théorie du droit, Geneva.
Christoph Bezemek is Professor of Law at University of Graz, Institute of Public Law and Political Science. His research focuses on comparative constitutional law, political and legal theory.
Frederick Schauer is the David and Mary Harrison Distinguished Professor of Law at the University of Virginia and Frank Stanton Professor (Emeritus) of the First Amendment at the Kennedy School of Government, Harvard University. He is the author of numerous publications on constitutional law, in particular on free speech, and on legal theory. He is a Co-Editor of Springer’s Law and Philosophy Library
Riassunto
This book explores the interrelation of facts and norms. How does law originate in the first place? What lies at the roots of this phenomenon? How is it preserved? And how does it come to an end? Questions like these led Georg Jellinek to speak of the “normative force of the factual” in the early 20th century, emphasizing the human tendency to infer rules from recurring events, and to perceive a certain practice not only as a fact but as a norm; a norm which not only allows us to distinguish regularity from irregularity, but at the same time, to treat deviances as transgressions. Today, Jellinek’s concept still provides astonishing insights on the dichotomy of “is” and “ought to be”, the emergence of the normative, the efficacy and the defeasibility of (legal) norms, and the distinct character of what legal theorists refer to as “normativity”. It leads us back to early legal history, it connects anthropology and legal theory, and it demonstrates the interdependence of law and the social sciences. In short: it invites us to fundamentally reassess the interrelation of facts and norms from various perspectives. The contributing authors to this volume have accepted that invitation.
