Luka Burazin

This thought-provoking book develops and elaborates on the artifact theory of law, covering a wide range of related theoretical and practical topics. Offering a range of perspectives that flesh out the artifact theory of law, it also introduces criticisms of previous formulations of the theory and inquires into its potential payoffs. Featuring international contributions from both noted and up-and-coming scholars in law and philosophy, the book is divided into two parts. The first part further explores and evaluates the concept of law as an artifact and analyses the background and theoretical basis of the theory. The second part comprises three sections on legal ontology, semantics and legal normativity, specifically in relation to law's artifactual nature. Providing cutting-edge insights at the intersection of law and philosophy, this book will appeal to scholars and students in philosophy of law, empirical legal studies, social ontology and the philosophy of society.

The comment consists of two parts. In the first part, I will challenge, on analytical grounds, Sampaio’s views on the kind of conflict that emerges between fundamental rights norms. I will claim that these conflicts can in fact be seen as total-total in abstracto conflicts, rather than partial-partial in concreto conflicts. In the second part, I will set forth a normative thesis advocating a possible alternative way of solving conflicts between fundamental rights norms which rests heavily on the legal system’s institutional history as the necessary, although not sufficient, criterion for giving precedence to one of the conflicting fundamental rights norms.

The paper claims that the rule of recognition, given the way it is presented by Hart, cannot be a constitutive rule of any legal system as a whole, but rather a constitutive rule of legal rules as elements of a legal system. Since I take the legal system to be an institutional artifact kind, I claim that, in order to account for a legal system as a whole, at least two further constitutive rules, in addition to the rule of recognition as a token-element constitutive rule, are needed – one constitutive of legal officials and the other constitutive of a legal system as a token. However, given the central role the legal officials' practice occupies in establishing a particular instantiation or token of a legal system, I also claim that the rule of recognition cannot be understood as 'merely' a token-element constitutive rule but also as a legal system's implementation or concretisation rule

The paper first outlines the thesis on (the means of) execution as a kind of legal sanction (esp. in the case of causing damage). It then sets out the basic theoretical arguments for rejecting the viewpoint according to which the duty of repair represents a sanction in the case of causing damage. The paper goes on to present the viewpoints of several legal philosophers (Bucher, MacCormick, Padjen, Pokrovac) who raised objections to the thesis on (the means of) execution. Finally, it critically analyses these objections and sets out six additional arguments with a view to strenghtening the said thesis.

The paper claims that the rule of recognition, given the way it is presented by Hart, cannot be a constitutive rule of any legal system as a whole, but rather a constitutive rule of legal rules as elements of a legal system. Since I take the legal system to be an institutional artifact kind, I claim that, in order to account for a legal system as a whole, at least two further constitutive rules, in addition to the rule of recognition as a token-element constitutive rule, are needed – one constitutive of legal officials and the other constitutive of a legal system as a token. However, given the central role the legal officials' practice occupies in establishing a particular instantiation or token of a legal system, I also claim that the rule of recognition cannot be understood as 'merely' a token-element constitutive rule but also as a legal system's implementation or concretisation rule

By taking as its starting point the results of criticism of the understanding of the duty of reparation as a type of civil law sanction, the article examines the possible changes in the contents of the concept of legal responsibility in the case of causing damage. Therefore, the author first analyzed the concept of legal responsibility from the standpoint of the General Theory and Philosophy of Law and identified its basic characteristics: normativity, relatedness, groundedness in the applicable legal procedure, personal responsibility, attribution of wrongful conduct (wrong), retrospectivity and normative position of liability to sanction. On the basis of the foregoing essential characteristics of the concept of legal responsibility, the author analyzed the conventional concept of responsibility for damage as legal responsibility in the case of causing damage. Hence, it was concluded that the concept of responsibility for damage does not possess a single essential characteristic of the general concept of legal responsibility. Therefore, according to the author's opinion responsibility for damage cannot be regarded as a type of legal responsibility. Instead, it should only be regarded as a legal relationship of "responsibility for damage" in which the wrongdoer has a legal duty to repair the damage to the injured person and the injured person has a subjective right to demand from the wrongdoer to repair the damage. Furthermore, for the purpose of avoiding confusion concerning basic legal concepts, the author concluded that the institution of legal relationship of "responsibility for damage" should more appropriately be termed legal relationship of damage reparation thus emphasizing at the same time the essential contents and the fundamental purpose of this legal relationship. Finally, a new normative content of legal responsibility in the case of causing damage was elaborated. The author defined legal responsibility in the case of causing damage, in its normative sense, as a legal position of liability to means of execution (sanction) of a person who did not of one's own accord fulfill their duty of reparation (wrong). Such a definition of the concept of legal responsibility in the case of causing damage gives rise to certain theoretical advantages. Apart from resolving the problem of confusion of basic legal concepts, it makes for a unique definition of sanction in law, provides for the possibility of identifying wrongfulness as a necessary precondition for any legal responsibility, overcomes the current problem in international law concerning state responsibility without wrongfulness, solves the problem of theoretical justification of strict responsibility and vicarious responsibility, and offers a clearer theoretical definition of the institute of liability insurance.

The paper first outlines the thesis on (the means of) execution as a kind of legal sanction (esp. in the case of causing damage). It then sets out the basic theoretical arguments for rejecting the viewpoint according to which the duty of repair represents a sanction in the case of causing damage. The paper goes on to present the viewpoints of several legal philosophers (Bucher, MacCormick, Padjen, Pokrovac) who raised objections to the thesis on (the means of) execution. Finally, it critically analyses these objections and sets out six additional arguments with a view to strenghtening the said thesis

The idea that particular legal institutions are artifacts is not new. However, the idea that the “law” or “legal system” is itself an artifact has seldom been directly put forward, due perhaps to the ambiguities surrounding philosophical inquiries into law. Nevertheless, such an idea has recently been invoked more often, though not always developed in detail in terms of what the characterization of the “law” or “legal system” as an artifact entails ontologically, and what consequences, if any, this has for philosophical accounts of law. As a result, the primary aim of this paper is to attempt an inquiry into what the claim that “law” by its nature or character is an artifact entails, and what an artifact theory of law might look like.