36 research outputs found
Vilhelm Lundstedtâs âLegal Machineryâ and the Demise of Juristic Practice
This article aims to contribute to the academic debate on the general crisis faced by law schools and the legal professions by discussing why juristic practice is a matter of experience rather than knowledge. Through a critical contextualisation of Vilhelm Lundstedtâs thought under processes of globalisation and transnationalism, it is argued that the demise of the juristâs function is related to lawâs scientification as brought about by the metaphysical construction of reality. The suggested roadmap will in turn reveal that the current voiding of juristic practice and its teaching is part of the crisis regarding what makes us human
Why Grundnorm? A Treatise on the Implications of Kelsen's Doctrine
The treatise is concerned with the source-âthe âGrundâ--of the bindingness of law. I contend, first, that the âpresuppositionâ of the basic norm, on a certain reading of Kelsenâs doctrine, can be understood as constituting a normative source of positive law, and, secondly, that this reading of Kelsen admits of addressing the issue of the (formal) legitimacy of supra-national and âdirectly applicableâ rules and other norms. The issue of the basic norm problematic is addressed by posing and answering three questions, namely: (1) Who presupposes the basic norm? (2) Is it possible to defend the presupposition in a way that is convincing? and (3) What difference does the presupposition make? From taking up and applying doctrines that are drawn from inquiries into what H.L.A. Hart called the âinternal aspectâ of rules, it becomes clear that internality-âin Kelsenian parlance: the âjuristic consciousnessâ-âis ambivalent in itself and that the ultimate measure of legal argumentation is the legal audience. In the final section of the treatise, I shift perspective: Investigating into the reasons that underlie the risk of conflict inherent in the relationship between the European Court of Justice and authoritative national courts, I argue that the normative âgroundâ suggested in Part Two--the presupposition of the basic norm as a "Grund" for legal argumentation--is affected, in our times, by the inclusion of democracy