On legal positivism's word and our 'form-of-(non-)living'

This paper is about two stories. The more reassuring one states that byestablishing that a norm is valid because of its source, not its merit, legal positivism is, in its various forms, perhaps one of the greatest achievements in Western legal theory and practice. From constitutionalism to human rights policies, from criminal to international law and free trade agreements, from contracts to torts and e-commerce, legal validity, predictability, and coherence have found their most powerful ally in positivist thought. This contribution argues that it is time for a different, neorealist story: the metaphysical, ontological and biopolitical essence of its language demonstrates that legal positivism has in fact played a fundamental role in the substitution of action with behaviour, and consequently, in the normalisation of humankind’s self-annihilating animality as post-historical and post-political ‘form-of-(non-)living.’

Context-resonant systems perspectives in career theory

"The focus of this chapter is on context-resonant systems perspectives in career theory and their implications for practice in diverse cultural and contextual settings. For over two decades, the potential of systems theory to offer a context-resonant approach to career development has been acknowledged. Career development theory and practice, however, have been dominated for most of their history by more narrowly defined theories informed by a trait-and-factor tradition of matching the characteristics of individuals to occupations. In contrast, systems theory challenges this parts-in-isolation approach and offers a response that can accommodate the complexity of both the lives of individuals and the world of the 21st century by taking a more holistic approach that considers individuals in context. These differences in theory and practice may be attributed to the underlying philosophies that inform them. For example, the philosophy informing the trait-and-factor theoretical position, logical positivism, places value on: studying individuals in isolation from their environments; content over process; facts over feelings; objectivity over subjectivity; and views individual behavior as observable, measurable, and linear. In practice, this theory base manifests in expert-driven practices founded on the assessment of personal traits such as interests, personality, values, or beliefs which may be matched to particular occupations. The philosophy informing more recent theoretical positions, constructivism, places value on: studying individuals in their contexts; making meaning of experience through the use of subjective narrative accounts; and a belief in the capacity of individuals known as agency. In practice, this theory base manifests in practices founded on collaborative relationships with clients, narrative approaches, and a reduced emphasis on expert-driven linear processes. Thus, the tenets of constructivism which inform the systems perspectives in career theory are context-resonant. Systems theory stresses holism where the interconnectedness of all elements of a system is considered. Systems may be open or closed. Closed systems have no relationship with their external environment whereas open systems interact with their external environment and are open to external influence which is necessary for regeneration. Congruent with general systems theory, the systems perspectives emerging within career theory are based on open systems. Such systems are complex and dynamic and comprise many elements and subsystems which recursively interact with each other as well as with influences from the surrounding environment. As elements of a system should not be considered in isolation, a systems approach is holistic. Patterns of behavior are found in the relationships between the elements of dynamic systems. Because of the multiplicity of relationships within and between elements of subsystems, the possibility of linear causal explanations is reduced. Story is the mechanism through which the relationships and patterns within systems are recounted by individuals. Thus the career guidance practices emanating from theories informed by systems perspectives are inherently narrative in orientation. Narrative career counseling encourages career development to be understood from the subjective perspective of clients. The application of systemic thinking in practice takes greater account of context. In so doing, practices informed by systems theory may facilitate relevance to a diverse client group in diverse settings. In a world that has become increasingly global and diverse it seems that context-resonant systems perspectives in career theory are essential to ensure the future of career development. Translating context-resonant systems perspectives into practice offers important possibilities for methods and approaches that are respectful of diversity."--publisher website

Rendering to Caesar and God : St Paul, the natural law tradition and the authority of law

The question of the authority of law has occupied and vexed the literature and philosophy of law for centuries. Law is something that characteristically implies obedience, but the precise nature of law’s authority remains contentious. The return to the writings of the Apostle Paul in contemporary philosophy, theology and jurisprudence begs attention in relation to the authority of law, and so this article will consider his analysis and critique of law with a focus on his Epistle to the Romans. It argues that Paul’s conception of the authority of law is explained on the basis that the law is from God, it externally sanctions obedience by virtue of the civil authorities, and it convicts internally in conscience. This triad is justified by the law of love (‘‘love your neighbor as yourself’’), and will be explained in relation to the natural law tradition as well as converse ideas in positivism. Hence, considering the reasoning of Paul in relation to traditional jurisprudential themes and the law of love provides a useful alternative analysis and basis for further investigation regarding the authority of law and the need for its obedience.

The ongoing significance of national media systems in the context of media globalization

This article argues that the concept of national media systems, and the comparative study of media systems, institutions, and practices, retains relevance in an era of media globalization and technological convergence. It considers various critiques of ‘media systems’ theories, such as those which view the concept of ‘system’ as a legacy of an outdated positivism and those which argue that the media globalization is weakening the relevance of nation-states in structuring the field of media cultures and practices. It argues for the continuing centrality of nation-states to media processes, and the ongoing significance of the national space in an age of media globalization, with reference to case studies of Internet policies in China, Brazil, and Australia. These studies indicate that nation-states remain critical actors in media governance and that domestic actors largely shape the central dynamics of media policies, even where media technologies and platforms enable global flows of media content.

La modernización entre cafetales : San José, Costa Rica, 1880-1930

This work examines the urban modernization of San José, Costa Rica, between 1880 and 1930, using a cultural approach to trace the emergence of the bourgeois city in a small Central American capital, within the context of order and progress. As proposed by Henri Lefebvre, Manuel Castells and Edward Soja, space is given its rightful place as protagonist. The city, subject of this study, is explored as a seat of social power and as the embodiment of a cultural transformation that took shape in that space, a transformation spearheaded by the dominant social group, the Liberal elite. An analysis of the product built environment allows us to understand why the city grew in a determined manner: how the urban space became organized and how its infrastructure and services distributed. Although the emphasis is on the Liberal heyday from 1880-1930, this study also examines the history of the city since its origins in the late colonial period through its consolidation as a capital during the independent era, in order to characterize the nineteenth century colonial city that prevailed up to 1890 s. A diverse array of primary sources including official acts, memoirs, newspaper sources, maps and plans, photographs, and travelogues are used to study the initial phase of San Jose s urban growth. The investigation places the first period of modern urban growth at the turn of the nineteenth century within the prevailing ideological and political context of Positivism and Liberalism. The ideas of the city s elite regarding progress were translated into and reflected in the physical transformation of the city and in the social construction of space. Not only the transformations but also the limits and contradictions of the process of urban change are examined. At the same time, the reorganization of the city s physical space and the beginnings of the ensanche are studied. Hygiene as an engine of urban renovation is explored by studying the period s new public infrastructure (including pipelines, sewer systems, and the use of asphalt pavement) as part of the Saneamiento of San José. The modernization of public space is analyzed through a study of the first parks, boulevards and monuments and the emergence of a new urban culture prominently displayed in these green spaces. Parks and boulevards were new public and secular places of power within the modern city, used by the elite to display and educate the urban population into the new civic and secular traditions. The study goes on to explore the idealized image of the modern city through an analysis of European and North American travelogues and photography. The new esthetic of theatrical-spectacular representation of the modern city constructed a visual guide of how to understand and come to know the city. A partial and selective image of generalized urban change presented only the bourgeois facade and excluded everything that challenged the idea of progress. The enduring patterns of spatial and symbolic exclusion built into Costa Rica s capital city at the dawn of the twentieth century shed important light on the long-term political social and cultural processes that have created the troubled urban landscapes of contemporary Latin America.

Filosofins renässans eller modern mystik : Bergsondebatten i Finland

The study examines the debate in Finland at the beginning of the 20th century surrounding the philosophy of Henri Bergson. Both within as well as outside of academic philosophy Bergsonism was adapted to the philosophical and cultural landscape in Finland by a process of selective appropriation. The ambiguous relationship between the sender and the receiver is accentuated in reference to philosophical celebrities such as Bergson, whose reputations spread more quickly than the content of their philosophy and whose names are drawn into the political and social discourse. As a philosophical movement the aim of Bergsonism was to create a scientific philosophy of life as an alternative to both idealism and modern empirical and antimetaphysical currents, during a period when European philosophy was searching for new guidelines after the collapse of the idealistic system philosophies of the 19th century. This reorientation is examined from a Finnish viewpoint and in the light of the process of intellectual importation. The study examines how elements from an international discourse were appropriated within the philosophical field in Finland against a background of changes in the role of the university and the educated elites as well as the position of philosophy within the disciplinary hierarchy. Philosophical reception was guided by expectations that had arisen in a national context, for example when Bergsonism in Finland was adjusted to a moral and educational ideal of self-cultivation, and often served as a means for philosophers to internationalize their own views in order to strengthen their position on the national stage. The study begins with some introductory remarks on the international circulation of ideas from the point of view of the periphery. The second section presents an overview of the shaping of the philosophical field at the turn of the 20th century, the naturalism and positivism of the late 19th century that were the objects of Bergson s critique, and an introduction to the attempts of a philosophy of life to make its way between idealism and naturalism. The third and main section of the study begins with a brief presentation of the main features of the philosophy of Bergson, followed by a closer examination of the different comments and analyses that it gave rise to in Finland. The final section addresses the ideological implications of Bergsonism within the framework of a political annexation of the philosophy of life at the beginning of the 20th century.

Systems between information and knowledge : In a memory management model of an extended enterprise

The research question of this thesis was how knowledge can be managed with information systems. Information systems can support but not replace knowledge management. Systems can mainly store epistemic organisational knowledge included in content, and process data and information. Certain value can be achieved by adding communication technology to systems. All communication, however, can not be managed. A new layer between communication and manageable information was named as knowformation. Knowledge management literature was surveyed, together with information species from philosophy, physics, communication theory, and information system science. Positivism, post-positivism, and critical theory were studied, but knowformation in extended organisational memory seemed to be socially constructed. A memory management model of an extended enterprise (M3.exe) and knowformation concept were findings from iterative case studies, covering data, information and knowledge management systems. The cases varied from groups towards extended organisation. Systems were investigated, and administrators, users (knowledge workers) and managers interviewed. The model building required alternative sets of data, information and knowledge, instead of using the traditional pyramid. Also the explicit-tacit dichotomy was reconsidered. As human knowledge is the final aim of all data and information in the systems, the distinction between management of information vs. management of people was harmonised. Information systems were classified as the core of organisational memory. The content of the systems is in practice between communication and presentation. Firstly, the epistemic criterion of knowledge is not required neither in the knowledge management literature, nor from the content of the systems. Secondly, systems deal mostly with containers, and the knowledge management literature with applied knowledge. Also the construction of reality based on the system content and communication supports the knowformation concept. Knowformation belongs to memory management model of an extended enterprise (M3.exe) that is divided into horizontal and vertical key dimensions. Vertically, processes deal with content that can be managed, whereas communication can be supported, mainly by infrastructure. Horizontally, the right hand side of the model contains systems, and the left hand side content, which should be independent from each other. A strategy based on the model was defined.

Evidence in European Asylum Procedures

This thesis explores the particular framework of evidentiary assessment of three selected appellate national asylum procedures in Europe and discusses the relationship between these procedures, on the one hand, and between these procedures and other legal systems, including the EU legal order and international law, on the other. A theme running throughout the thesis is the EU strivings towards approximation of national asylum procedures and my study analyses the evidentiary assessment of national procedures with the aim of pinpointing similarities and differences, and the influences which affect these distinctions. The thesis first explores the frames construed for national evidentiary solutions by studying the object of decision-making and the impact of legal systems outside the national. Second, the study analyses the factual evidentiary assessment of three national procedures - German, Finnish and English. Thirdly, the study explores the interrelationship between these procedures and the legal systems influencing them and poses questions in relation to the strivings of EU and methods of convergence. The thesis begins by stating the framework and starting points for the research. It moves on to establish keys of comparison concerning four elements of evidentiary assessment that are of importance to any appellate asylum procedure, and that can be compared between national procedures, on the one hand, and between international, regional and national frameworks, on the other. Four keys of comparison are established: the burden of proof, demands for evidentiary robustness, the standard of proof and requirements for the methods of evidentiary assessment. These keys of comparison are then identified in three national appellate asylum procedures, and in order to come to conclusions on the evidentiary standards of the appellate asylum procedures, relevant elements of the asylum procedures in general are presented. Further, institutional, formal and procedural matters which have an impact on the evidentiary standards in the national appellate procedures are analysed. From there, the thesis moves on to establish the relationship between national evidentiary standards and the legal systems which affect them, and gives reasons for similarities and divergences. Further, the thesis studies the impact of the national frameworks on the regional and international level. Lastly, the dissertation makes a de lege ferenda survey of the relationship between EU developments, the goal of harmonization in relation to national asylum procedures and the particular feature of evidentiary standards in national appellate asylum procedures. Methodology The thesis follows legal dogmatic methods. The aim is to analyse legal norms and legal constructions and give them content and context. My study takes as its outset an understanding of the purposes for legal research also regarding evidence and asylum to determine the contents of valid law through analysis and systematization. However, as evidentiary issues traditionally are normatively vaguely defined, a strict traditional normative dogmatic approach is not applied. For the same reason a traditionalist and strict legal positivism is not applied. The dogmatics applied to the analysis of the study is supported by practical analysis. The aim is not only to reach conclusions concerning the contents of legal norms and the requirements of law, but also to study the use and practical functioning of these norms, giving them a practcial context. Further, the study relies on a comparative method. A functionalist comparative method is employed and keys of comparison are found in evidentiary standards of three selected national appellate asylum procedures. The functioning equivalences of German, Finnish and English evidentiary standards of appellate asylum procedures are compared, and they are positioned in an European and international legal setting. Research Results The thesis provides results regarding the use of evidence in national appellate asylum procedures. It is established that evidentiary solutions do indeed impact on the asylum procedure and that the results of the procedure are dependent on the evidentiary solutions made in the procedures. Variations in, amongst other things, the interpretation of the burden of proof, the applied standard of proof and the method for determining evidentiary value, are analysed. It is established that national impacts play an important role in the adaptation of national appellate procedures to external requirements. Further, it is established that the impact of national procedures on as well the international framework as on EU law varies between the studied countries, partly depending on the position of the Member State in legislative advances at the EU level. In this comparative study it is, further, established that the impact of EU requirements concerning evidentiary issues may be have positive as well as negative effects with regard to the desired harmonization. It is also concluded that harmonization using means of convergence that primaly target legal frameworks may not in all instances be optimal in relation to evidentiary standards, and that more varied and pragmatic means of convergence must be introduced in order to secure harmonization also in terms of evidence. To date, legal culture and traditions seem to prevail over direct efforts at procedural harmonization.

El derecho entre ciencia y jurisprudencia

Resumen: El autor introduce su trabajo con una serie de precisiones semánticas acerca de los conceptos principales que definen el objeto de su indagación: derecho, ciencia y jurisprudencia. Critica la noción de ciencia aplicada al derecho, y la aspiración a la certeza que ella conlleva y que pretende ser realizada por el positivismo y la ideología política de la soberanía según el modelo moderno y de la Revolución Francesa. Y pone de manifiesto las contradicciones en las que incurren las diversas corrientes positivistas. En el núcleo teórico de la investigación, contrapone convencionalismo y realismo, para pasar luego a analizar las concepciones modernas y contemporáneas de jurisprudencia y la concepción de Francesco Gentile acerca de lo que él denomina “geometría legal”. La conclusión pretende mostrar que los errores de perspectiva acerca del derecho y la jurisprudencia terminan necesariamente en la desnaturalización del derecho y, en definitiva, en la injusticia.

Una introducción a temas y tensiones presentes en el documento

Resumen: El artículo recorre los antecedentes que dieron origen al Documento de la Comisión Teológica Internacional sobre ley natural, con particular referencia a las intervenciones de Juan Pablo II y Benedicto XVI. Presenta sucintamente algunos temas del documento, a saber: la búsqueda de un patrimonio ético común a la humanidad en las tradiciones culturales; la cuestión de la experiencia moral y la llamada interior a hacer el bien; la justificación filosófica de la ley natural; el orden político de la sociedad y el tema de Jesucristo, plenitud de la ley natural. También se consideran las tensiones que subyacen al mismo, con particular referencia a las problemáticas de modernidad ilustrada y posmodernidad, laicismo y laicidad y iusnaturalismo y positivismo jurídico.

Contingencia o justicia trascendental : Luhman o Höffe?

Resumen: El autor expone los argumentos centrales desarrollados tanto por Höffe como por Luhmann respecto de los fundamentos de un orden normativo institucional que garanticen una justicia política y no-metafísica. Así, presenta las contribuciones de ambos pensadores; explica -en la primera sección- la ética luhmaniana, y más adelante describe la crítica de Höffe al positivismo luhmanniano. Finalmente, el autor rescata las contribuciones de Luhmann y Höffe y las ubica como las más relevantes de las últimas décadas en materia de filosofía del derecho alemán.

La abstracción formal y la validación del razonamiento inductivo

Resumen: Suele admitirse que uno de los problemas pendientes, al menos desde Hume, en la teoría de la ciencia es la justificación crítica de los procesos inductivos, que son los que siguen las ciencias experimentales, como son las ciencias naturales. Frente a las ineficaces explicaciones aportadas por el empirismo o neopositivismo, así como por los racionalismos o idealismos, que son radicalmente incapaces para resolver el problema, nosotros presentamos la respuesta del realismo aristotélico, basada en el correcto concepto de abstracción formal, ignorado o malentendido incluso por muchos aristotélicos tanto antiguos como modernos. La respuesta consiste, en suma, en ver que el término del proceso inductivo, en cuanto llega a conclusiones universales a partir de lo particular, debe estar mediado por un proceso previo de abstracción de la forma, bien entendida, en lo mismo concreto y particular. Ello permite ver que la conclusión universal no desborda las premisas, que es el problema clásico de la epagogé aristotélica.

Notas sobre un jurista olvidado : Julio Herrera y su intervención parlamentaria con motivo de la reforma del código penal en la República Argentina (1902-1903)

Resumen: Este trabajo pretende contribuir a una producción historiográfica en desarrollo en los últimos años cuyo objetivo es el estudio de los discursos y prácticas de un conjunto de juristas argentinos adherentes al positivismo penal que desde fines del siglo XIX impulsaron una serie de iniciativas de reforma penal y penitenciaria (creación y dirección de instituciones carcelarias y post penitenciarias; renovación de la producción científica y universitaria; elaboración de propuestas legislativas; etc.). En esta ocasión, analizaremos la figura de Julio Herrera, uno de los más distinguidos penalistas argentinos, aunque paradójicamente ignorado por los estudios históricos e histórico-jurídicos, centrándonos en su intervención parlamentaria con motivo del proyecto de reforma del código penal presentado en la Cámara de Senadores en 1903.

Métodos cuantitativos versus métodos cualitativos en la economía de los Negocios. ¿Es una metodología reconciliable?

Changes in the organizational environment over the last three decades have increasingly led to traditional theories being called into question, by stimulating the search for new models suited to the new realities of business economics, generating a crisis or scientific revolution that may result in the appearance of a new paradigm. The positivism-phenomenology duality provokes an “epistemological crisis” in research in management sciences. But the existence of both approaches does not imply the election of one scientific orientation in frontal opposition to the other. From these two conceptions of research procedure, the methods applied can be classed into groups, quantitative and qualitative. The quantitative methodologies places great confidence in the ability of data and measurement to represent opinions or concepts, while qualitative methodologies focus on words and relations to describe a reality or situation. While the diversity of methods contribute to its development and indicates the maturity of an area, the methods must be suitably implemented to obtain significant, valid results. The methodology to be used is not going to depend solely on the type of study or the reality under examination, but also on the stage the research process has reached.

Propriedade rural, posse e meio ambiente: uma ponderação harmoniosa

A presente tese tem por objetivo defender, sob a visão do direito civil-constitucional e da função promocional do direito, a inter-relação entre os direitos de posse, propriedade e do meio ambiente e a possibilidade de uma ponderação harmoniosa em caso de desequilíbrio entre esses direitos. Utiliza-se para tanto a dimensão analítica, empírica e normativa. A dimensão analítica tem por objetivo investigar os conceitos jurídicos envolvidos na pesquisa, especialmente em relação à propriedade e à sua função socioambiental. A relação entre tais conceitos sobressai através da análise da função socioambiental da propriedade, da posse enfatizando-se os aspectos da legislação ambiental. O direito fundamental ao meio ambiente é estudado como direito e dever de todos conforme disposto no art. 225 da Constituição de 1988, e, nesse ponto, diretamente eficaz nas relações interprivadas. Aborda-se, na dimensão empírica e normativa essencialmente aspectos práticos, com foco na jurisprudência, especialmente do Supremo Tribunal Federal (STF) e do Superior Tribunal de Justiça (STJ). A ponderação harmoniosa entre a propriedade, a posse e o meio ambiente, busca o equilíbrio na efetivação desses direitos, inclusive mediante a aplicação dos princípios do direito econômico. Por meio da ponderação, é possível alcançar, de forma mais eficiente do que o modelo tradicional de subsunção, uma resposta adequada e fundamentada para os casos difíceis, especialmente na efetivação e na restauração do equilíbrio entre a posse, a propriedade e o meio ambiente quando esses princípios, no caso concreto, colidem uns com os outros. Sobretudo, pretende-se concretizar os direitos fundamentais segundo exigências do pós-positivismo, por meio da aproximação entre o Direito e a Ética, com o fim de se alcançar a Justiça para o caso concreto.