Graz Jurisprudence Talks
Our Graz Jurisprudence Talks are staged several times during term time. Our guest speakers are established scholars who present current or recently published work.
Prof. Dr. Alon Harel
A Public Conception of Political Authority
Political authority is a subset of practical authority. Practical authorities are generally identified with hierarchical relationships. The authority decides for its subjects what to do or refrain from doing and they, in turn, are required to conform with that decision. The legitimacy of practical authority depends on justifying hierarchy between an authority and its subjects—for instance, that submission to authority guides the subject to act in accordance with reason or that it serves the subject’s own interests or that in fact the subject consented to the authority or some other valuable ends.
By contrast, we argue that political authority is non-hierarchical; it is justified because it eliminates rather than justifies the hierarchy between the authority and its subjects. Public officials in a position of authority do not decide for those subject to their rule but rather do the deciding in the name of the subjects. The answer to the legitimacy question addressed to Moses, “who made thee a prince and a judge over us,” is not that the thee is in some sense more qualified or better positioned to make decisions for us; it is not consensual submission to the rule of thee, and it is not a byproduct of a fair, democratic or egalitarian, procedure. Rather, it is that the ‘thee’ is in reality ‘us.’ This explains why political authority is necessarily public; it represents those who are subject to it and, consequently, those who are subject to it are, in principle, accountable for the authority’ decisions. It further explains the fact that political authority is the only type of authority that is often regarded in the liberal tradition as freedom-facilitating rather than -limiting.
Axioms, Norms and the Constitution
The Constitution can be considered as an informal axiomatic system. This point of view rests on the follow-ing propositions: (1) axioms are considered as contextual definitions of those concepts by means of which they are formulated; and (2) the main requirement for this type of system is internal consistency. The first proposition is necessary for considering the Constitution as an informal axiomatic system, while the second is sufficient. In this case, the Constitution can be compared to axiomatic constructions in the sense that is given in the research on the logic and methodology of deductive sciences. This analogy is appropriate to the extent to which constitutional provisions are interpreted as the basic elements of the legal system, just as in the formal sciences axioms are regarded as basic principles that define the main features of the formal sys-tem. This means that the Constitution itself can be seen as coherent, consistent discourse that contextually defines the meaning of the basic concepts of the legal system.
Dr. Kenneth Einar Himma
There but for the grace of God go I: What people deserve and what people should get
Luck plays a bigger role in how well our lives go than one might initially think: luck determines, to some extent, how smart we are; how pretty we are; what kind of personality traits we have; whether or not we have competent parents; whether we are born in affluent countries or whether we are born in absolutely poor countries; whether our bodies are prone to certain physical illnesses or not; whether we are religious; and so much more. We have so little control over so much that affects our lives that it raises a legitimate question as to whether anyone can claim to deserve any of the good or bad things that happen in our lives.
This raises a host of difficult questions concerning distributive and salvific justice, but I focus in this lecture on retributive justice as it pertains to crime and punishment. There are four principal moral justifications for punishment: (1) the retributivist principle that people should get the punishment they deserve for having committed a crime; (2) the utilitarian principle that people should be punished in a manner that maximally deters other people from committing crimes without punishing them in a manner that is morally excessive or disproportionate; (3) the prophylactic principle that the point of punishment is to segregate or execute the offender for the purpose of preventing him or her from committing future crimes; (4) the rehabilitative principle that people should be punished as a means of rehabilitating them and preparing them to reenter society; and (5) the closure principle that people should be punished to afford direct and indirect victims of the crime emotional closure. While I am principally concerned with luck and the retributivist principle, which I reject as incoherent, I will also the utilitarian and closure justifications and argue that the only legitimate justifications for segregating criminal offenders are prevention of crime and rehabilitation.
Prof. Dr. David Duarte| University of Lisbon
Deontic Modalities and Legal Positions
Under a Hohfeldian scheme of correlativity and accepting the premise by which only norms confer legal positions or, in other words, that legal positions are just the outcome of norms, from that follows that a full frame of legal positions depends solely on the distinct combinations of the variables connected to norm's deontic modalities and, simultaneously, that the structure of norms has to somehow entail room for those positions. Analyzing this in the field of primary norms and considering atomistic legal positions in a norm individuation basis, the talk addresses these specific topics and, particularly, some problems regarding legal positions related to permissive norms such as if there is normative stand for half liberties or if a possible duty of non-interference might be qualified as an autonomous legal Position.
Dr. Jorge Portocarrero | Ruprecht-Karls University Heidelberg
The elements of an argumentative theory of constitutional Interpretation
This paper puts forward a case for an argumentative approach of constitutional interpretation, which regards the interpretation of constitutional norms as a special case of general theory of legal reasoning. Its nature is argumentative since the correctness of its outcomes is the product of a structured exchange of reasons set out to reach reasonable agreements. This theory is based on three basic elements: a conventionalist account on the meaning of words, a methodological approach on interpreting constitutional norms, and an anti-positivistic account on the nature of law.
Prof. Dr. iur. Dr. h. c. Werner Gephart | Rheinische Friedrich-Wilhelms-Universität Bonn
Das „Recht als Kultur“-Paradigma. Einige Regeln und Anwendungen zur Rechtsanalyse als Kulturforschung
The talk addresses the "law as culture" paradigm, which has been developed at the Käte Hamburger Kolleg located at the University of Bonn. This paradigm understands law as a multidimensional concept, which is embedded in particular and universalistic, global contexts of legitimacy. It sees the tension between law and arts as the constitutive element of modern law. In this modern concept of law, "culture" increasingly serves as a normative, although not unproblematic, source of legitimacy.
Professor Gephart discusses the practicality of this approach by having a look at some examples, which have been developed in 21 volumes of the series "Recht als Kultur" ("Law as culture"), published by Klostermann Verlag. His talk is accompanied by visualisations of law, which have been published in "Some colours of the Law" (by Werner Gephart, Frankfurt am Main, Recht als Kultur, Bd. 21).
Dr. Chiara Valentini | Pompeu Fabra University
"Constitutional Adjudication, Judicial Dialogue and Overlapping Doctrines"
The paper addresses the use of foreign law in constitutional adjudication. The first part illustrates the spread and relevance of the judicial practice of making reference to foreign law, along with the main questions that come with it. On the one hand questions concerning its justification and on the other hand questions concerning its scope and method. The second part of the paper attempts to provide a key to these questions. It presents a model of judicial dialogue that points toward a partial convergence among constitutional doctrines. This model builds on a defense of the judicial use of foreign law that draws on the Rawlsian ideas of reflective equilibrium and public reason (Moreso and Valentini 2017).
Dr. Andrej Kristan | University of Girona
"A Paradox of Hart's Fallible Finality"
The goal of this talk is to offer a redefinition of the concept of the fallibility of final judicial decisions. Its standard understanding, based on Hart's work, is far more problematic than is usually assumed. The author intends to show that the usual understanding gives rise to a contradiction. Namely, that it is (sometimes) legally correct to do that which is not legally correct. He will then briefly test three methods of solving the problem and conclude that none of them speaks in favour of distinguishing between the finality and infallibility of judicial decisions. Accordingly, he will re-examine Hart's motivations for embracing that distinction and identify a misstep in his reasoning.
Univ.-Prof. Dr. Stephan Kirste | Universität Salzburg
"Das Menschenrecht auf Demokratie"
"The Human Right to Democracy"
A human right to democracy is established neither by the concept of democracy to human rights, nor by the concept of human rights to democracy, or by the same origins of human rights and democracy. Human rights and democracy have positive liberty, i.e. autonomy, as a common origin. The human right to democracy should be understood as a subjective right to equal participation in the debate, interpretation, and implementation of general rights and obligations.
Dr. Luka Burazin | University of Zagreb
"Legal Systems as Abstract Institutional Artifacts"
The talk defended the view that a legal system is an abstract institutional artifact. Its existence is grounded in social practices. It differs from 'ordinary' artifacts in that it is rule-based and requires general recognition. Making it the case that a legal system exists is realized through the general recognition of the constitutive rule laying out a set of conditions for there to be a legal system.