By Ota Weinberger

ISBN-10: 9401055300

ISBN-13: 9789401055307

ISBN-10: 9401134588

ISBN-13: 9789401134583

It provides me nice excitement to supply this foreword to the current paintings of my widespread buddy and revered colleague Ota Weinberger. except the essays of his that have been released in our joint paintings An Institutional concept of legislations: New methods to criminal Positivism in 1986, quite little of Wein­ berger's paintings comes in English. this is often the extra to be regretted, on account that his is figure of specific curiosity to jurists of the English-speaking global either in view of its origins and in appreciate of its content material As to its origins, Weinberger struggle reared as a scholar of the natural idea of legislations, a conception which in its Kelsenian shape has aroused very nice curiosity and has had massive effect between anglophoone students -perhaps much more than within the Germanic international locations. much less renowned is the truth that the natural concept itself divided into faculties, that of Vienna and that of Brno. It was once within the Brno college of Frantisek Weyr that Weinberger's felony thought stumbled on its early formation, and maybe from that early impact you can still hint his carrying on with insistence at the twin personality of criminal norms -both as really normative and but while having genuine social existence.

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Extra resources for Law, Institution and Legal Politics: Fundamental Problems of Legal Theory and Social Philosophy

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WHY LEGAL POSITIVISM? Those concerned with the legal theories of the institution partly advocate natural law (M. Hauriou, G. Renard), partly, they are positivists (S. Romano). I have to explain, therefore, why and in what way my conception is to be regarded as a positivist theory. The view adopted by many positivists claiming that social norms are created only as a result of explicite acts of will conflicts with the institutional theory. Consequently I reject such a view. Even more inacceptable to my mind is the 'act-relative positivism' (as it is advanced by Kelsen in his later theory) which recognises the existence of norms only where there is a real act of volition the content of which constitutes this norm.

The continued practice produces the notion of the nonnative nature of this practice and the nonn itself takes on the appearance of an authoritative dictate imposed by the community, in other words, of a legal nonn. This conception also provides a solution to the problem of the Common Law. " I do not think that this psychological inclination of regarding what 37 Compare HL. Hart, The Concept of Law, Oxford 1961, p. 86. ff. 38 G. Jellinek, Allgemeine Staatslehre, Bad Homburg/Berlin/ZUrich 1966, esp.

Those concerned with the legal theories of the institution partly advocate natural law (M. Hauriou, G. Renard), partly, they are positivists (S. Romano). I have to explain, therefore, why and in what way my conception is to be regarded as a positivist theory. The view adopted by many positivists claiming that social norms are created only as a result of explicite acts of will conflicts with the institutional theory. Consequently I reject such a view. Even more inacceptable to my mind is the 'act-relative positivism' (as it is advanced by Kelsen in his later theory) which recognises the existence of norms only where there is a real act of volition the content of which constitutes this norm.

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Law, Institution and Legal Politics: Fundamental Problems of Legal Theory and Social Philosophy by Ota Weinberger


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