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Andrei Marmor - One of the best experts on this subject based on the ideXlab platform.
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What Is Law and What Counts As Law?
2017Co-Authors: Andrei MarmorAbstract:The separation thesis associated with the Legal positivist tradition in Legal philosophy holds that the Legal Validity of norms depends only on their sources, not on considerations of merit or value. In this essay I show that the separation thesis comes under pressure from cases in which an answer to the question: Is o an F? partly depends on the values associated with the nature of F. This is certainly the case when we try to determine whether an object is a work of art, for example. In response, proponents of the separation thesis would want to resist the analogy with art, and maintain that the ascription of Legal Validity to a norm does not involve any evaluative dimensions. I argue that this line of response is not very firm, and a better way to defend the separation thesis is to see it as an answer to the question of what makes it the case that an o counts as an F in the relevant society. I try to show that this latter type of question follows from the theoretical context in which the separation thesis comes up, namely, a reductionist explanation of Legal Validity. My purpose here is to show how a proper construal of the separation thesis, in the context of Legal positivism’s reductionist ambition, goes a long way in supporting its truth.
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what is law and what counts as law the separation thesis in context
2017Co-Authors: Andrei MarmorAbstract:The separation thesis associated with the Legal positivist tradition in Legal philosophy holds that the Legal Validity of norms depends only on their sources, not on considerations of merit or value. In this essay I show that the separation thesis comes under pressure from cases in which an answer to the question: Is o an F? partly depends on the values associated with the nature of F. This is certainly the case when we try to determine whether an object is a work of art, for example. In response, proponents of the separation thesis would want to resist the analogy with art, and maintain that the ascription of Legal Validity to a norm does not involve any evaluative dimensions. I argue that this line of response is not very firm, and a better way to defend the separation thesis is to see it as an answer to the question of what makes it the case that an o counts as an F in the relevant society. I try to show that this latter type of question follows from the theoretical context in which the separation thesis comes up, namely, a reductionist explanation of Legal Validity. My purpose here is to show how a proper construal of the separation thesis, in the context of Legal positivism’s reductionist ambition, goes a long way in supporting its truth.
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Introduction
Philosophy of Law, 2011Co-Authors: Andrei MarmorAbstract:This introductory chapter begins with a discussion of the concept of Legal Validity and the three main schools of thought have emerged in response to the general questions concerning the conditions of Legal Validity. It then sets out the two main themes that inform the main argument of this book: the relations between the factual and the normative and between substance and method. The book shows that the debates about the possibility of detachment in both substance and method, and the subtle relations between them, have informed a great deal of the theorizing in Legal philosophy during the last century. It shows that a substantial part of these debates centers on the question of the possibility of reduction. An overview of the subsequent chapters is also presented.
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The Separation Thesis and the Limits of Interpretation
Canadian Journal of Law & Jurisprudence, 1999Co-Authors: Andrei MarmorAbstract:There are many versions of Legal positivism; perhaps as many as there are Legal positivists around. All the versions of Legal positivism, however, subscribe to the so-called Separation Thesis. This thesis basically maintains that detenriining what the law is, does not necessarily, or conceptually, depend on moral or other evaluative considerations about what it ought to be in the relevant circumstances. Legal positivists differ, however, and quite substantially, over the appropriate interpretation of this thesis. The so-called ‘strong’, or ‘exclusive’ version of Legal positivism maintains that moral considerations never determine the Legal Validity of norms. ‘Soft’ positivists, on the other hand, do maintain that there is a close relation between Legal Validity and morality, but they hold that this relation is, at best, a contingent matter; it does not derive from the nature of law or Legal reasoning as such. Soft-positivists claim that moral considerations determine Legal Validity only in certain cases, namely, in those cases which follow from the rules of recognition that happen to prevail in a given Legal system.
Christoph Laub - One of the best experts on this subject based on the ideXlab platform.
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Legal Validity metrics for patent offices and law firms recycling of patent court appeal decisions for quality management
World Patent Information, 2014Co-Authors: Christoph LaubAbstract:Abstract In all relevant patent systems an adversely affected party has the possibility to appeal the patent office's decision in front of a patent court or Board of Appeal (BoA). Within a European context, the EPO is, in a way, even engaging in de facto competition with national patent offices. As an example, the German Patent and Trademark Office (DPMA) provides quasi identical patent products and offers the same kind of Legal recourse to the German patent court (BPatGer) for these products. Both offices offer an opposition procedure which is open for appeal, and also in the case of a refusal, both offices offer the possibility of appeals. Thus, the EPO Boards of Appeal are engaged in making decisions every year on around 2000 cases and, e.g., the BPatGer on 600 cases regarding the Legal Validity of the first instance's work. It is thus remarkable that, so far, nobody has systematically included the work of the patent courts in a statistical Legal Validity evaluation in the context of the Patent & Trademark Offices' (PTOs') quality assurance systems. Since there is obviously a need to establish a common standard for the comparison of first and second instance Legal teachings in patent law, a methodology for comparative Legal Validity analysis is proposed in this paper. I have tested and optimised the approach while working as a project manager at the European Patent Office, based on analysis of 2300 appeal decisions from seven annual batches.
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Legal Validity Metrics for Patent Offices and Law Firms – Recycling of Patent Court Appeal Decisions for Quality Management
World Patent Information, 2014Co-Authors: Christoph LaubAbstract:Abstract In all relevant patent systems an adversely affected party has the possibility to appeal the patent office's decision in front of a patent court or Board of Appeal (BoA). Within a European context, the EPO is, in a way, even engaging in de facto competition with national patent offices. As an example, the German Patent and Trademark Office (DPMA) provides quasi identical patent products and offers the same kind of Legal recourse to the German patent court (BPatGer) for these products. Both offices offer an opposition procedure which is open for appeal, and also in the case of a refusal, both offices offer the possibility of appeals. Thus, the EPO Boards of Appeal are engaged in making decisions every year on around 2000 cases and, e.g., the BPatGer on 600 cases regarding the Legal Validity of the first instance's work. It is thus remarkable that, so far, nobody has systematically included the work of the patent courts in a statistical Legal Validity evaluation in the context of the Patent & Trademark Offices' (PTOs') quality assurance systems. Since there is obviously a need to establish a common standard for the comparison of first and second instance Legal teachings in patent law, a methodology for comparative Legal Validity analysis is proposed in this paper. I have tested and optimised the approach while working as a project manager at the European Patent Office, based on analysis of 2300 appeal decisions from seven annual batches.
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On Legal Validity – Using the Work of Patent Courts for Quality Management
The Journal of World Intellectual Property, 2013Co-Authors: Christoph LaubAbstract:The patent courts of the world's leading patent systems annually pass judgment in more than 12,000 cases originating from decisions made at first instance. These judgments constitute a statistically significant resource of final opinions relating to the quality of the work of the Legal authorities, but one that has so far not been systematically exploited by the patent offices. This paper shows, for the first time, a way to provide objective and cost-efficient metrics for the work of patent offices and patent attorney professionals. Accordingly, the following key conclusions are developed in this paper: * Patent case law is sufficiently representative and suitable for statistical analysis of first instance decisions; * The current academic approaches to Legal Validity analysis of patent court decisions seem not sufficiently transparent for the application in patent and trademark office operative quality systems; * The Legal remedies of refusal and opposition appeal can be modeled; * Legal Validity and the harmonization level of a patent system are measurable; * The Legal Validity of European Patent Office (EPO) refusal decisions appears to be comparatively higher than the Validity of opposition decisions in view of the EPO Boards of Appeal; * The analysis methodology for the EPO is fully transferable to the worldwide relevant patent systems whilst retaining their national Legal autonomy; * The new EU Patent: there will be a degree of competition between EU patent revocation procedure and the EPO opposition procedure. In future, it will be necessary to evaluate also the quality of the EU Patent Court of First Instance.
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on Legal Validity using the work of patent courts for quality management
The Journal of World Intellectual Property, 2013Co-Authors: Christoph LaubAbstract:The patent courts of the world's leading patent systems annually pass judgment in more than 12,000 cases originating from decisions made at first instance. These judgments constitute a statistically significant resource of final opinions relating to the quality of the work of the Legal authorities, but one that has so far not been systematically exploited by the patent offices. This paper shows, for the first time, a way to provide objective and cost-efficient metrics for the work of patent offices and patent attorney professionals. Accordingly, the following key conclusions are developed in this paper: * Patent case law is sufficiently representative and suitable for statistical analysis of first instance decisions; * The current academic approaches to Legal Validity analysis of patent court decisions seem not sufficiently transparent for the application in patent and trademark office operative quality systems; * The Legal remedies of refusal and opposition appeal can be modeled; * Legal Validity and the harmonization level of a patent system are measurable; * The Legal Validity of European Patent Office (EPO) refusal decisions appears to be comparatively higher than the Validity of opposition decisions in view of the EPO Boards of Appeal; * The analysis methodology for the EPO is fully transferable to the worldwide relevant patent systems whilst retaining their national Legal autonomy; * The new EU Patent: there will be a degree of competition between EU patent revocation procedure and the EPO opposition procedure. In future, it will be necessary to evaluate also the quality of the EU Patent Court of First Instance.
Miodrag A. Jovanovic - One of the best experts on this subject based on the ideXlab platform.
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Legal Validity and Human Dignity – On Radbruch's Formula
Social Science Research Network, 2013Co-Authors: Miodrag A. JovanovicAbstract:This paper dispels a widely held belief of certain prominent Anglo-American jurisprudents that on the issue of defining criteria of Legal Validity the hatchets have been buried between Legal positivism and natural law theory. It will demonstrate not only that this issue is not completely settled among Anglo-American scholars, but that it is the central problem of the German Legal theoretical tradition, which is the most influential school in the continental Europe. The paper will particularly focus on Radbruch’s formula, as one of the well-known modern refinements of the traditional jusnaturalist lex iniusta non est lex slogan. After putting its analysis within the major developments and shifts in Radbruch’s Legal philosophy, the paper will advance the thesis that the ultimate criterion of Legal Validity in this formula concerns the most basic human right, that of human dignity.
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Legal Validity and human dignity on radbruch s formula
Archiv für rechts-und sozialphilosophie ARSP. Beiheft, 2013Co-Authors: Miodrag A. JovanovicAbstract:This paper dispels a widely held belief of certain prominent Anglo-American jurisprudents that on the issue of defining criteria of Legal Validity the hatchets have been buried between Legal positivism and natural law theory. It will demonstrate not only that this issue is not completely settled among Anglo-American scholars, but that it is the central problem of the German Legal theoretical tradition, which is the most influential school in the continental Europe. The paper will particularly focus on Radbruch’s formula, as one of the well-known modern refinements of the traditional jusnaturalist lex iniusta non est lex slogan. After putting its analysis within the major developments and shifts in Radbruch’s Legal philosophy, the paper will advance the thesis that the ultimate criterion of Legal Validity in this formula concerns the most basic human right, that of human dignity.
Prokopcová Michaela - One of the best experts on this subject based on the ideXlab platform.
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The providing Legal Validity of digital and analog documents
2018Co-Authors: Prokopcová MichaelaAbstract:In today's "electronic" era, the topic of this bachelor's thesis, The Providing Legal Validity of Analogue and Digital Documents, is highly relevant. The Legal Validity of documents is not only related to state authorities and public administration but concerns citizens themselves. The aim of my bachelor's thesis is to shed light on the issue of analogue and digital documents and to the related Legal Validity. Legislation in the Czech Republic changes the Legal Validity of documents by means of laws, decrees and regulations and given the increasing number of these changes it is very difficult to orientate in this area. In the first part of the thesis it will be explained what is behind the concept of a document itself, and what is its role and meaning. In the next part it will be followed by the issues related to the analogue document including its Legal requirements and its circulation in the file service. Subsequently, a similar analysis of the digital document and the Legal regulations on which the digital document is built will be made. In particular, the work will be based mainly on the fundamental Legal norms and regulations related to the eGovernment, which was initiated by Act No. 300/2008 Coll., on the Electronic Acts and Authorized Document Conversion. There will also be presented..
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The providing Legal Validity of digital and analog documents
Univerzita Karlova Filozofická fakulta, 2018Co-Authors: Prokopcová MichaelaAbstract:V dnešní "elektronické" době je téma této bakalářské práce, "Zajištění právní Validity1 analogových a digitálních dokumentů", velmi aktuální. Právní validita dokumentů nesouvisí zdaleka pouze se státními úřady a veřejnou správou, ale dotýká se i samotných občanů. Cílem mé bakalářské práce je objasnit problematiku analogových a digitálních dokumentů a s nimi spojenou právní validitu (platnost). Legislativa v České republice mění právní validitu dokumentů pomocí zákonů, vyhlášek a nařízení a vzhledem k rostoucímu počtu těchto změn, je velmi obtížné se v této oblasti orientovat. V úvodní části práce bude vysvětleno, co se skrývá pod samotným pojmem dokument, jaká je jeho úloha a význam. Dále bude následovat problematika týkající se analogového dokumentu, včetně jeho právních náležitostí a jeho koloběhu v rámci spisové služby. Následně se přejde k podobné analýze elektronického dokumentu a k zákonným předpisům, na kterých je elektronický dokument postaven. Práce bude opřena především o zásadní zákonné normy a nařízení, vztahující se k eGovernmentu, který byl zahájen zákonem č. 300/2008 Sb., o elektronických úkonech a autorizované konverzi dokumentů. Představeny budou také následující specifikace, které eGovernment k této problematice přinesl. V další části práce budu analyzovat dopad nařízení eIDAS z...In today's "electronic" era, the topic of this bachelor's thesis, The Providing Legal Validity of Analogue and Digital Documents, is highly relevant. The Legal Validity of documents is not only related to state authorities and public administration but concerns citizens themselves. The aim of my bachelor's thesis is to shed light on the issue of analogue and digital documents and to the related Legal Validity. Legislation in the Czech Republic changes the Legal Validity of documents by means of laws, decrees and regulations and given the increasing number of these changes it is very difficult to orientate in this area. In the first part of the thesis it will be explained what is behind the concept of a document itself, and what is its role and meaning. In the next part it will be followed by the issues related to the analogue document including its Legal requirements and its circulation in the file service. Subsequently, a similar analysis of the digital document and the Legal regulations on which the digital document is built will be made. In particular, the work will be based mainly on the fundamental Legal norms and regulations related to the eGovernment, which was initiated by Act No. 300/2008 Coll., on the Electronic Acts and Authorized Document Conversion. There will also be presented...Department of Auxiliary Historical Sciences and Archive StudiesKatedra PVH a archivního studiaFilozofická fakultaFaculty of Art
Seow Hon Tan - One of the best experts on this subject based on the ideXlab platform.
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Validity and obligation in natural law theory does finnis come too close to Legal positivism
Social Science Research Network, 2003Co-Authors: Seow Hon TanAbstract:The relation between law and morality is a point of contention amongst Legal philosophers. There are several issues: first, the extent to which law should incorporate moral standards; second, the effect of moral status on Legal Validity (the "Validity question"); third, the effect of Legal Validity on the obligation created by the law (the "obedience question"). Because most positivists concede that it is desirable for law to accord with notions of justice and morals and that law often incorporates morals, the first issue features less prominently in the positivism-natural law debate. This article examines John Finnis's views on the latter two issues: the Validity question and the obedience question. In doing so, this article points out the implications of the manner in which positivism and natural law theory deal with these questions.