Constantin Luft

In this article we discuss the so-called cantilever argument, used by Joseph Carens to establish a human right to global freedom of movement. First of all, we criticise Carens’s classification of the argument as both an “analogy” and a “logical extension”. Comparing the cantilever argument with Carens’s popular feudalism analogy suggests understanding it solely as an extension, but certainly not as a “logical” one. Finally, we sketch out whether, by means of the cantilever, he succeeds in shifting the burden of proof to the opponents of such a human right.

This article is an attempt to examine Christoph Menke’s critical theory of modern bourgeois law through the lenses of analytic jurisprudence. We therefore scrutinize some core concepts from his Critique of Rights in order to gain a better understanding of the so-called “new law” which is presented as a theoretical alternative to the allegedly defective law of ius proprium-rights [Eigenrechte]. In the first part, we sharpen Menke’s concept of normativity with a reason-based approach and by using the metaethical notions of formal and robust normativity. This sets the stage for analyzing his brand-new concept of counter-rights [Gegenrechte] in the second part. We identify a whole archipelago of meanings for it and group them by considering potential mereological relations between ius proprium-rights and counter-rights. Our mapping turns out to be fruitful in shedding new light on an already known dilemma for the concept of counter-rights. The final section delivers a sketch of the implementation challenge for counter-rights: How can we achieve a “new law”? We distinguish several conceptions of a corresponding utopia and criticize Menke for resorting to a construction that is based on a fiction.

This chapter demonstrates that counter-arguments against such a right from analytic legal theory, among them Steiner’s, do not succeed. Although there are no rights on the part of post-mortem persons, a right to bequeath can be explained by and built around posthumous interests of the testator that might be adversely affected after his or her demise. This perspective, however, would have to be based upon an interest theory of rights. For proponents of a will theory of rights such as Steiner, the Hohfeldian approach offers a different and more adequate way to reconstruct a right to bequeath, not as a claim-right, but as a legal power to create a persisting legal relation. The existence and validity of such a legal relation is independent of whether the person who created it can still be ascribed or is able to express any subjective interest in it or any direction of will. If this legal relation is not honoured, if the legal duties created and defined by it are not fulfilled, the testator’s right to bequeath is infringed upon. As there are no limits to the right to bequeath based on conceptions of individual rights or the technicalities of legal theory, the chapter will point to more promising paths for a normative critique of the right to bequeath.

This paper uses analytic philosophy to prevent merely verbal disputes about the concept of fiction within discussions on fictiones iuris. It provides a survey of potentially fruitful connections between legal fictions and fictionalism. More specifically, I will argue that by enriching current accounts of legal fictions in legal theory with insights from (1) the philosophy of language on fictional speech and from (2) contemporary metaphysics on philosophical fictionalism, it seems natural to explore the position that talk involving fictiones iuris is structurally an exemplification of elliptical speech. Such fictionalism about legal fictions illuminates why prominent condemnations of fictions in law – e.g., as blatant falsehoods, shady fraudulences, or legal defects – are theoretical myths, since they fail to distinguish between analytically distinct (ontological, epistemic, alethic, semantic, and evaluative) levels. Moreover, a fictionalist account might even sharpen our sense of which legal fictions are more “innocent” than others. I will begin with introducing philosophical fictionalism (II), before the fictio iuris will be characterized as an operation in legal reasoning by consulting the Leibnizian reconstruction of Roman Law’s epistemology (III). Sections IV and V seek to provide further clarifications on the ‘fictional’/‘fictitious’ distinction as well as the heterogeneity of fictionalist research questions. Section VI then contains a little guided tour through the different analyses of the concept of fiction(s) within fictionalism. Subsequently, I will show how insights from those discussions contribute to demystify some of the most prominent allegations raised against legal fictions (VII). Fictionalism about legal fictions, section VIII tentatively suggests, might not only harmonize with both classic and recent treatments of legal fictions, but help to also highlight their epistemic values. In slogan form: fictiones iuris are instruments to preserve legal truths worth having.

Methodenlehre ist dogmatisches Kerngeschäft: Die »Auslegungsmethoden« sind allgemein bekannt. Methodologie übt aber auch in den Grundlagenfächern einen starken Einfluss aus, der häufig unterschlagen wird. In der analytischen Rechtsphilosophie konkurrieren auf dieser Ebene evaluative jurisprudence und descriptive jurisprudence. Dabei wird die zentrale Frage verhandelt, wie man Rechtsphilosophie betreibt und was von einer philosophischen Theorie des Rechts zu erwarten ist. Dieser Beitrag zeichnet eine grobe Landkarte der Debatte und führt dabei knapp in wichtige begriffliche Unterscheidungen ein.

This paper is an attempt to investigate a new indirect strategy in order to justify the concepts of prenatal and posthumous rights. Instead of providing positive reasons for recognizing rights without actually living rightholders, I sketch an analogical argument inspired by the famous Lucretian symmetry thesis. It relies on similarities between the major objections raised against rights for past and future people. The provisional examination suggests that there is only one direction for a convincing symmetry – surprisingly, it is the inversion of the one casually relied on by the literature: if we start recognizing prenatal rights, we should recognize their posthumous counterparts likewise.

Neither the Anglophone nor the Continental tradition has produced a sophisticated philosophical analysis of limitation in law. The topic is surprisingly underexplored. This article tries to overcome the theoretical blind spot. It inaugurates the special jurisprudence of time-barring by exploring a new way of rationally reconstructing limitation in private law. Although legal scholars have built up a whole arsenal of alleged reasons for limitation (respectively prescription), those conventional legal justifications fail altogether as philosophical foundations. Such attempts may illuminate functions or purposes of this legal institute, but cannot reconstruct why prescription reasonably “exists”, i.e., why legal rights usually get lost with the lapse of time. Our own theorization of limitation, which appeals directly to the role of the judge, strives to overcome this deficit and proceeds in four steps. After initially characterizing the concept limitation as familiar (“justice delayed is justice denied”) and foreign (“for every wrong there is a remedy”) at the same time (I.), we make explicit three largely unnoticed preconditions for having a consistent concept of limitation in the first place (II.). In a second step, we restrict the focus to prescription in private law and set the stage (1) by unfolding doctrinal features of limitation systems that theoretical accounts should be apt to reconstruct and (2) by showing to what extent the conventional legal justifications fail to meet these demands (sections III. and IV.). The third step consists in the presentation of our alternative, the so-called Straightforward View (V.): inspired by Hegel’s thoughts on usucapio and praescriptio longi temporis in Roman Law, we argue that prescription can be rationally reconstructed using an irrebuttable presumption that the claimant will never bring his or her claim to court. This view is straightforward insofar as private law is essentially a system of claims. Judges are forbidden to grant claims without the parties bringing them to court. And certain facts (mainly about the claimant’s inactivity) can simply ground the presumption. Epistemologically, this means a judge is committed to hold it as true that a certain claim will never be brought to court. Consequently, the judge is forbidden to grant it. Under such circumstances, it is clearly intelligible how and why claims can become time-barred. Moreover, our view seems to reconstruct the doctrinal explananda of limitation quite neatly. In the concluding sections, we distinguish it from other presumption-based accounts, adumbrate some of its potential risks and benefits (VI.) and anticipate three objections (VII.). Compared to the conventional legal justifications, the Straightforward View is more systematic, more unified, and a better reconstruction of prescriptions’ most salient doctrinal features. Nevertheless, it is not hyper-reformist, but an epistemologically informed upgrade for the old aphorism vigilantibus non dormientibus subvenit lex. In sum, we offer a brand-new theory of prescription in private law.