Values, Rights and Duties in Legal and Philosophical Discourse

IVR Law and Politics. In Search of Balance

21st World Congress Lund, Sweden, 12-18 August 2003

President: Aleksander Peczenik (Sweden)

Vice-President: Manuel Atienza (Spain), Paolo Comanducci (Italy),

Yasumoto Morigiwa (Japan), Marek Zirk-Sadowski (Poland)

Executive Committee: Robert Alexy (Germany), Fernando Atria (Chile), Brenda Baker (Canada),

Alexander Bröstl (Slovakia), Eugenio Bulygin (Argentina), Tom Campbell (Australia), Chongko Choi (Korea), Slim Laghmani (Tunisia), Burton Leiser (USA),

Kevät Nousiainen (Finland), Sandra Marshall (UK), Rolando Tamayo y Salmorän (Mexico), Yan Thomas (France), Zhang Wenxian (China), Pauline Westermann (Netherlands)

RECHTSTHEORIE

Zeitschrift für Logik, Juristische Methodenlehre, Rechtsinformatik, Kommunikationsforschung, Normen- und

Handlungstheorie, Soziologie und Philosophie des Rechts

Beiheft 21

Values, Rights and Duties in Legal and Philosophical Discourse

Edited by

Christian Dahlman/ Werner Krawietz

Duncker & Humblot • Berlin

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RECHTSTHEORIE, Beiheft 21, S. V-VII Duncker & Humblot, 12165 Berlin

CONTENTS

Stig Stromholm Human Rights and the Philosophy of Law. Address at the Inauguration of the 21st IVR World Congress, Lund, Sweden, 12 August 2003 1

I. Integration of Democracy and Law with Markets and Morality

Kenneth Avio Legitimacy, Market Order, and Experimental Economics 11

Feodor F. Cruz In Search of the Moral Foundation of Law and Politics 23

Alistair M. Macleod When Freedoms Conflict 35

David A. Reidy Reciprocity Confronts Reasonable Disagreement: From Liberal to Demo-cratic Legitimacy 49

n. On Transformation of Legal Systems and Crafting Stability - Rights, Rules or Institutions?

Christopher B. Gray Tarde on Legitimacy in Legal Procedure 65

Burton M. Leiser

The Evils of Saddam's Regime in Light of International Law and Morality 73

Lester J. Mazor

Deligitimating Deligitimacy: The U.S. Supreme Court Decides a Presiden-t ial Election 81

Dorota Mokrosinska From Natural Duties to Political Obligation - A Problematic Passage 95

VI Contents

Michael Roumeliotis The Disappearance of Reason from Public Affairs and the Consequent Change in the Concepts of the Law, the Judge and the Legal Dispute 107

III. Law as Black-Letter Law, Law as Contextual and Judicial Review

Bruce Anderson "Context" in Canadian Law and Adjudication 117

Kota Fukui On the Coupling between Conflict Management and Realization of General Rules of Law - In Relation to Justice System Reform in Japan 129

Veli-Pekka Hautamäki Judicial Activism and "the Final Frontier" - Remarks on the Nordic Law 141

Hans-Rudolf Horn Judges versus Legislators: Some Critical Remarks on Judicial Review 153

IV. Legal Norms as Reasons for Action -Universalism versus Particularism

Uta Bindreiter The Modality of Kelsen's Sollsatz 167

Maria Cristina Redondo Legal Reasons 179

Jan-R. Sieckmann Principles as Normative Arguments 197

Giovanni Tuzet Abduction and Deduction: Epistemic Justice vs. Political Justice? 211

Contents VI I

V. Fundamentals of Legal Argumentation and Adjudication - The Argument from Consequences

Eveline T. Feteris Arguments from Unacceptable Consequences in the Justification of Judi-cial Opinions 225

Hendrik J. R. Kaptein Secrets of Confidentiality: Adjudication ad Ignorantiam against Material Rights and Justice? 239

Heidi Malm Automatic Transfers from Juvenile Court: On Moral Legitimacy of Trying Juveniles as Adults Based on the Size of the Crime 251

Sonia Esperanza Rodríguez Boente The Value of Circumstantial Reasoning in the Determination of the Facts. Special Reference to Trial by Jury 261

List of the Authors 273

RECHTSTHEORIE, Beiheft 21, S. 1-7 Duncker & Humblot, 12165 Berlin

HUMAN RIGHTS AND THE PHILOSOPHY OF LAW

Address at the Inauguration of the 21st IVR World Congress, Lund, Sweden, 12 August 2003

By Stig Stromholm, Uppsala

If you are entrusted wi th the honourable task of giving one of the three introductory addresses on an occasion of this importance and dignity, you tend to be beset wi th the laudable ambition of trying, certainly not to cover, or even to summarize, but at least to give a glimpse of, the in-tellectual domains that w i l l be ploughed and sown in the next few days, were i t only by quick references and allusions to a selection of topics -allusions which are comprehensible at least to the few experts immedi-ately involved and hopefully convey to them that feeling of being looked forward to which is not the least allurement by which active participants are attracted at international congresses. Alas, when considering the wealth, and breadth, of subjects proposed for discussion at the congress, that ambition is l ikely to be unrealistic. When pondering upon the possi-bi l i ty of realising it, an anecdote came to my mind: although the popular habit of telling anecdotes in serious contexts - 'cracking jokes' as i t is called in some circles - is a cheap and despicable habit, I beg your leave to tell i t. A rising but sti l l young and unknown conductor had been in-vited to lead the Vienna Symphony Orchestra at a prestigious concert, and a local enthusiast put the question to an elderly member of the or-chestra: 'What is he going to conduct?' - ' I have not the faintest idea, but we are going to play Beethoven's third symphony.'

This answer would seem to illustrate wi th brutal sincerity the impossi-bi l i ty of even referring, even by quick allusions, even to a small selection of the topics to be discussed. So you have to abandon any introductory conductory ambition and simply play your own fiddle.

The place where we are meeting today and the next few days is well chosen for our purpose, for i t is rich in memories - and indeed not only in memories, but also in ongoing activities - related both to human rights and to the philosophy of law. Three hundred and thirty-six years ago, Samuel Pufendorf received from the King of Sweden the letters patent appointing him professor iuris prudentiae primarius in the new-

2 Stig Strömholm

founded university of Lund, and i t was here that he wrote and pub-lished, in 1672, his great treaty De iure naturae et gentium libri VIII, fol-lowed, one year later, by the shorter textbook De officiis hominis et civis. Many distinguished lawyers have taught, and written, in the law faculty of Lund in the course of the centuries which have passed since i t was founded, but I shall dwell only on one of Pufendorf's successors, who is l ikely to have been, in his days, the most influential or at least the best-known, jurisprudential writer among them, both in a national and in an international perspective. That is Carl Olivecrona, who came from Upp-sala, was appointed professor of procedural law in Lund in 1933, retired in 1964, and died in 1980. He was a prolific writer in several fields of legal science, but the publications which are of particular interest in the present context are his jurisprudential works. The first important one is Law as Fact , 1939, to which corresponds a Swedish version, published shortly afterwards. In 1966 he published, in Swedish, the book Rättsord-ningen , and in 1971 an English version, being at the same time an en-larged new edition of Law as Fact and also bearing that name.

Pufendorf's relevance for the history of legal philosophy cannot be questioned; he was one of the most influential of the great writers be-longing to the movement commonly referred to as the classical, or the rationalistic, natural law school. He belonged to the generation following upon that of Hugo Grotius, and his works, in particular the shorter book, De officiis , would seem to be the most widely read textbook of its kind, at least in the Protestant parts of Europe. He was highly efficient and successful in developing to a high degree of precision and sophistica-tion the method of analysing legal systems in terms of individual rights and duties; through that contribution to legal science he belongs to the forebears both of the human rights advocates of the Enlightenment, and of the systematizing German 18th and 19th century lawyers whose work determined the intellectual structure of the Bürgerliches Gesetzbuch.

There is no reason to believe that Pufendorf, any more than Grotius, doubted that God is the ultimate source of law, whether revealed by the Scriptures or by Nature. That last term means, in this context, some-thing instilled, as i t were, by nature, which is after all God's creation, into the minds of men, and thus part of their right reason. However, for motives which we do not really know but which can hardly have been completely unconnected wi th the growing intellectual confidence of scholars and more particularly of scientists in the late 17th century, and the concomitant growing irr i tat ion wi th the claims of theologians, Pufen-dorf tried to justify and give legitimacy to a concept of law which was 'natural' and 'rational' in as much as i t was entirely based upon human reason, and which consequently, in its operation, did without the author-

Human Rights and the Philosophy of Law 3

i ty of God's w i l l and divine commands, as revealed in the Scriptures. The system of rules, organized whenever possible in the form of rights and duties, which Pufendorf thus built was a structure not in opposition, but in independent juxtaposition, to the realm of law revealed in the Scriptures and the precepts derived from moral theology.

Olivecrona's thinking is a continuation and development of what is called the Uppsala school or, as part of a broader spectrum of ideas, 'Scandinavian realism'. He competed for the position as the international figurehead of that movement wi th his contemporary, colleague, and ad-versary on the other side of the Sund, Alf Ross, of Copenhagen. I remem-ber vividly being present, as a very young professor of jurisprudence in Uppsala, at a congress where these two then quite old, truly eminent and world-famous scholars met in a discussion which revealed both the close similarity between their ideas on the subject under consideration and their f irm resolution not to recognize it. I left the congress convinced that being a great legal philosopher does not inevitably mean being a great philosopher in the Socratic sense, a sage.

Now, Olivecrona sets out to give to law, - as i t obviously functioned in an occidental society at about the middle of the last century and on the whole st i l l functions in that k ind of community - a foundation and an explanation which do without not only God's revelation and a nature en-dowed wi th reason from its creation, but also the idea that the precepts of law are the expression of a wi l l , as was supposed, knowingly or un-knowingly, by the various schools of positivism which had supplanted natural law thinking as mainstream jurisprudence in the early decades of the 19th century and which st i l l flourished at least at the time when the Uppsala school started its attacks on traditional jurisprudence, i.e. the first two or three decades of the 20th century. In many quarters posi-tivism in one version or another prevailed much longer - i t probably sti l l prevails today as the bread-and-butter doctrine of practitioners. Olive-crona obviously treats Pufendorf's view of law as a historic phenomenon, as überwunden , as the German term goes, and consequently not as a con-temporary erroneous theory that has to be criticized and overthrown. In the book Rättsordningen he presents a well-informed and nonpolemic in-terpretation of Pufendorf's most important ideas. One of the obvious rea-sons why he can refrain from criticism is that Olivecrona has moved away from what was an almost fanatically held creed of the early rea-lists - the refusal to accept the notion of rights. Pufendorf, as just stated, has probably done more than any other writer to give that notion a key position both as a substantial element of any body of legal rules and as the foremost tool by means of which that body can be organized into a coherent structure, a system. In his later writ ing, Olivecrona accepts the