Download Position and Change: A Study in Law and Logic by Lars Lindahl (auth.) PDF

By Lars Lindahl (auth.)

The current research which i've got subtitled A examine in legislation and common sense was once caused by way of the query of no matter if an research into legislation and criminal structures could lead on to the invention of unrevealed basic styles universal to all such platforms. this query was once extra encouraged by means of interrelated difficulties. first of all, may an inquiry be rooted in particularly felony concerns, as unique from the extra traditional writings on deontic common sense? Secondly, may such inquiry yield a concept which might however include a strict and straightforward logical constitution, allowing sizeable conclusions in criminal concerns to be deduced from easy ideas governing a few uncomplicated thoughts? prior to the improvement of deontic good judgment, W. N. Hohfeld dedicated his efforts to this query before everything of this century. although, with this exception, few jurists have studied the interrelation among legislation and good judgment projected during this approach. however, nice names are to be discovered, Gottfried Wilhelm Leibniz and Jeremy Bentham-both philo­ sophers with criminal as weIl as logical education. Bentham's investigations of logical styles in legislations have only in the near past attracted consciousness; and as for Leibniz, his achievements are nonetheless virtually absolutely unexplored (his most crucial writings on legislations and good judgment haven't even been translated from Latin). My preliminary curiosity within the query was once evoked through Professor Stig Kanger. even though essentially a philosopher and thinker, Stig Kanger has been additionally within the basics of felony theory.

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Sample text

In such a case the privileges exist, so that if X succeeds in eating the salad, he has violated no rights of any of the parties. But it is equally clear that if A had succeeded in holding so fast to the dish that X couldn't eat the contents, no right of X would have been violated. (1923, p. 41) Thus, from (3) it is not possible to infer (5) p has versus q a right to the effect that q does not prevent p from performing A. Of course, neither can it be inferred from (3) that p has a "right of noninterference" against a third party: (6) p has versus r a right to the effect that r does not prevent p from performing action A.

The relation right according to Austin's criterion is thus a subrelation or subtype of the relation defined by Bentham. Austin's definition of this subrelation is based on a number of additional concepts over and above those discussed here, namely power or capacity, enforcing an obligation and civil action. The possibility of defining and classifYing different subtypes of the general relation right to a service will crop up again in another connection later; there is in Kanger's theory of atomic types of right a classification of subtypes which will be presented in due course.

Raz goes on to say that Hohfeld's insistence that every right is a relation between no more than two persons is completely unfounded and makes the explanation of rights in rem impossible ... (1970, p. 180) The gist of his argument seems to be as follows. Suppose that Smith is the owner of Blackacre, and it is true that (9) Smith has a right in rem of not being prevented from using the land pertaining to Blackacre (9) can be roughly paraphrased along the lines (10) Smith has a right versus everybody of not being prevented from using the land pertaining to Blackacre (cf.

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