Papers by Luka Burazin
Revus - journal for constitutional theory and philosophy of law, 2023
This paper has three aims. The first is to explicate what kind of entity legal offices are and wh... more This paper has three aims. The first is to explicate what kind of entity legal offices are and what their specific mode of existence amounts to. The second is to explain in virtue of what these offices can be said to be legal. Finally, third, to show the relevance of the actual use of legal offices for their existence. The main argument is that, ontologically, legal offices are best understood as immaterial institutional artifacts. This is because they can be created only if there is collective recognition of the relevant constitutive norms, which confer the status function of legal office, accompanied by the relevant deontic powers, and can continue to exist only for as long as this recognition is maintained. Furthermore, it is argued that so-called derived legal offices (e.g., the legislature and judiciary) are legal in virtue of the legal norms that constitute them, and the so-called original legal office (i.e., the constitution-maker) in virtue of the citizens' norm of recognition (i.e., in virtue of its being collectively regarded as a legal office by the relevant community). Finally, the paper argues that as institutional artifacts, legal offices can be said to exist only on the condition that they are, at least initially, filled with officials actually carrying out the deontic powers accompanying the offices they hold and for as long as the initial citizens' collective recognition of the original officials is not withdrawn.
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L. Burazin, K. E. Himma, C. Roversi, P. Banas (eds.), The Artifactual Nature of Law, Edward Elgar, 2022
The paper claims that legal systems qua (sequences of) sets of legal norms fit neither of the two... more The paper claims that legal systems qua (sequences of) sets of legal norms fit neither of the two traditional ontological categories of entities. Although in an important sense related to contingent concrete entities such as legal officials, citizens, legal practice and normative documents, legal systems themselves are not concrete physical particulars. Further, while abstractions and as such intangible, immaterial and lacking a spatial location in the strict sense, they cannot be categorized as Platonistic ideal abstracta. By applying Thomasson’s artifactual theory, the paper argues that legal systems are best conceived as abstract artifacts, i.e., created immaterial objects existentially dependent on a variety of other entities. Legal systems are immaterial, with no spatial location in the strict sense, and are thus in this sense abstract entities. However, they are located in time and treated by us as created entities (and thus artifacts) that depend on a number of concrete entities for both their coming into existence and remaining in existence. Finally, the paper explains the ways in which legal systems existentially depend on legal officials, citizens, legal practice and normative documents.
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T. Spaak, G. Villa Rosas (eds.), Legal Competence: Concept, Norms, Formalization, and Exercise, Springer, 2023
The paper analyses the relationship between legal offices and legal powers. It claims that a set ... more The paper analyses the relationship between legal offices and legal powers. It claims that a set of legal positions which constitutes a legal office necessarily includes at least one legal power. It argues that legal offices are always constituted by power-conferring norms, be they legal or social power-conferring norms. Furthermore, it argues that legal offices qua social artifacts necessarily include at least a minimum liberty to exercise the powers of the office. Finally, it defends a view that legal offices can never be dissociated from the powers they consist in, rejecting the so-called dissociation thesis developed in social ontology literature.
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Analisi e diritto, 2021
The paper aims to reconstruct and critically analyse efficacy as a condition of validity in Hans ... more The paper aims to reconstruct and critically analyse efficacy as a condition of validity in Hans Kelsen's General Theory of Norms both in the light of his newly introduced distinction between the conditional and full validity of a norm and the dynamic aspect of the legal order. It also aims to give a systemic account of efficacy as a condition of validity of both general and individual legal norms, taking into account the temporal aspect of validity, i.e., the moments in which a norm becomes valid and ceases to be valid, and the time span during which it remains valid. The paper first outlines Kelsen's understanding of the concept of efficacy (Section 2). It then analyses and reconstructs the efficacy condition as a condition for the beginning of a legal norm's validity (Section 3), and goes on to analyse and reconstruct the efficacy condition as a condition of the end of a legal norm's validity. Finally, the paper systematizes the conditions under which the general hypothetical sanction-decreeing legal norm and the individual hypothetical and categorical sanction-decreeing legal norms acquire and lose their validity (Section 5).
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Doxa. Cuadernos de Filosofía del Derecho, 2021
Este artículo pretende explicar el tipo de entidades que son las funciones jurídicas y en qué con... more Este artículo pretende explicar el tipo de entidades que son las funciones jurídicas y en qué consiste su forma particular de existencia. Esto es, pretende explicar en virtud de qué puede afirmarse que las funciones jurídicas existen. De igual manera, pretende explica en virtud de qué puede decirse que estas funciones son jurídicas. A pesar de que se toma el antirrealismo como punto de partida, según el cual los artefactos, y por lo tanto las funciones jurídicas, dependen de la mente humana (i.e. son entidades dependientes de la mente (mind-dependent)) en el sentido que los estados mentales de los autores de artefactos o los conceptos en los que se basan estos estados constituyen (por lo menos parcialmente) su existencia, el artículo procura demostrar la relevancia que tiene el uso efectivo de las funciones jurídicas para constituir su existencia.
The paper aims to explicate what kind of entity legal offices are and what their specific mode of existence amounts to. That is, it aims to explicate in virtue of what legal offices can be said to exist. Also, it aims to explain in virtue of what these offices can be said to be legal. While the basic idea rests on an antirealist ontological position, according to which artifacts, and thus, per hypothesis, legal offices, depend on the human mind (i.e., they are mind-dependent entities) in the sense that the mental states of the authors of artifacts and the concepts on which these states are based are (at least partly) constitutive of their existence, the paper strives to show the relevance of the actual use of legal offices for their existence.
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Jurisprudence, 2019
One of the main questions raised by Ken Ehrenberg's book The Functions of Law (OUP, 2016) is how... more One of the main questions raised by Ken Ehrenberg's book The Functions of Law (OUP, 2016) is how to remain a legal positivist and still adhere to the view that law should best be understood in terms of its ends or functions. Ehrenberg illuminatingly provides answers to both sides of the question by exposing his ontological understanding of law, claiming that law is best understood as a genre or kind of institutionalised abstract artifact. While I in general agree with Ehrenberg's analysis of the artifactual and institutional character of law and share a great many ideas he elaborated in the book, I still have some doubts and reservations regarding some of the particulars of his theoretical position. For the purpose of this comment, I will limit myself to three points. The first regards Ehrenberg's identification of the object of inquiry and the possibility of making ontological inferences from individual laws to law as a type (genre or kind). The second concerns his explanation of the artifactual character of customary laws and his general view on the form and degree of intentionality required for the artifact to be brought into existence. The third refers to the methodology he advocates for getting to the general notion of laws' functions and his characterization of law's function stemming from law's artifactual and institutional character.
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Sellers, Mortimer, Kirste, Stephan (Eds.), Encyclopedia of the Philosophy of Law and Social Philosophy, Springer, 2019
The thesis that law is an artifact has several implications: that the instantiations of law have ... more The thesis that law is an artifact has several implications: that the instantiations of law have authors and are intentionally created, that law has a function, that law is a special type of artifact, i.e. an institutional, abstract, public and social artifact, and that law cannot exist if it is not socially efficacious. The inquires into the artifactual character of law that reveal these implications seem to have some potential payoffs for the understanding of law (e.g., of the dynamic character of law, contingency of the concept of law and law's properties, and normativity of law) and of our epistemic relation to law (e.g., of the immunity from massive error about what law is). They also seem to have an impact on the jurisprudential methodology (e.g., by directing us to non-essentialist ontological inquires into law, emphasizing the functional explanation of law and the need to combine conceptual analysis and experimental philosophy, and opening up the possibility for the project of prescribing conceptual revision) and to accommodate some of the seemingly opposed insights of the current theories of law (e.g., by accounting in a coherent way for both the objectivity of law and its effectiveness).
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D. Duarte, J. S. Sampaio (eds.), Proportionality in Law, Springer, 2018, pp. 111-117
The comment consists of two parts. In the first part, I will challenge, on analytical grounds, Sa... more 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.
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P. Chiassoni, B. Spaić (eds.), Judges and Adjudication in Constitutional Democracies: A View from Legal Realism, Spinger, 2021
It is sometimes claimed (in Anglo-American jurisprudential literature) that the rule of recogniti... more It is sometimes claimed (in Anglo-American jurisprudential literature) that the rule of recognition sets the criteria for identifying legal norms and that this, therefore, means that canons of interpretation are also part of these criteria. Such a view then faces the problem of theoretical disagreements that call into question the rule of recognition itself and legal positivistic accounts of law. The paper argues that the rule of recognition sets the criteria only for sources of law and not legal norms themselves and that a theory of interpretation that distinguishes between normative texts (sources of law) and legal norms (as meanings of legal texts) can help explain why the rule of recognition might still be conceived as a conventional rule based on the convergent practice of officials and the fact that officials sometimes disagree about the correct interpretation of legal texts.
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"The Province of Jurisprudence Naturalized", Jerzy Stelmach, Bartosz Brożek, Łukasz Kurek (eds.), Warsaw: Wolters Kluwer 2017
The paper opens with an exposition of the basic ideas of the philosophical school of naturalism a... more The paper opens with an exposition of the basic ideas of the philosophical school of naturalism and its most widespread version, methodological naturalism. This is followed by three of Leiter’s proposals for the naturalisation of questions of the philosophy of law: the first consists in naturalising the theory of adjudication modelled on replacement and normative naturalism in epistemology, the second consists in turning the philosophy of law into the abstract and reflective part of the empirical social sciences on law, and the third consists in colonising the philosophy of law with experimental philosophy. The thesis that the last version of Leiter’s naturalism is, in fact, reduced to a so-called modest methodological naturalism is put forward. The paper closes with the most important criticisms of Leiter’s naturalistic methodological approach, as well as with the thesis on the complementarity between conceptual analysis and modest methodological naturalism.
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Sellers, Mortimer, Kirste, Stephan (Eds.), Encyclopedia of the Philosophy of Law and Social Philosophy, Springer, forthcoming 2019
One of the senses of the term 'efficacy' refers to the fact that norm-addresses actually behave a... more One of the senses of the term 'efficacy' refers to the fact that norm-addresses actually behave as is required of them by legal norms. This sense of the term is one which is generally used within the jurisprudential discussions about whether efficacy is the essential element of the concept of law. According to legal positivism, efficacy is in some cases and in certain ways the condition of legal validity of both legal norms and legal systems. On the other hand, legal realism tends to entirely identify legal validity or reduce it to efficacy. Thus, in both jurisprudential approaches, efficacy tends to play a role in shaping their respective concepts of law. However, while the legal positivistic view does not affect the most standard sense of legal validity of the legal norm (i.e. the legal norms' membership in the legal system), and does not add much to the explanation of the concept of law by identifying efficacy as the criterion of legal systems' existence, the legal realistic view is faced with some serious objections regarding its explanatory adequacy.
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Law as an Artifact, ed. by L. Burazin, K. E. Himma and C. Roversi, Oxford UP (2018)
The paper argues that a (structured) legal system is an abstract institutional artefact. A legal ... more The paper argues that a (structured) legal system is an abstract institutional artefact. A legal system is an artefact insofar as its existence in a society is grounded in social practices among officials and citizens. Officials bring the system of law into existence by practicing a social norm of recognition and can hence, in some sense, be thought of as the 'authors' of the legal system acting on some overlapping set of intentional states that include bringing a system of 'law' into existence, rather than some other system of rules. By being institutional by nature, it differs from ‘ordinary’ artefacts (such as chairs, hammers or clocks) in that it is norm-based and requires general ('collective') recognition (acceptance). This means that it can initially be created only if there is general recognition of the relevant constitutive norms and can continue to exist only for as long as this recognition is maintained. Finally, it is abstract in the sense that it is not created by imposing the status function ‘legal system’ to any existing physical object or person but by making it the case that it exists provided certain conditions are fulfilled.
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Ratio Juris - An International Journal of Jurisprudence and Philosophy of Law, Vol. 29, 3(2016)
The paper aims at attempting an inquiry into what the claim that 'law' by its nature or character... more The paper aims at attempting an inquiry into what the claim that 'law' by its nature or character is an artifact, in fact, would entail and what, in the end, an artifact theory of law might look like. Before embarking on such an inquiry, I will, however, first try to indicate at least some potential payoffs of the artifactual understanding of law (Section 2). In order to be able to answer certain ontological questions concerning legal systems as artifact kinds, I will outline in what follows a general theory of artifacts (Section 3). I will do this by exploring several theories of artifacts developed in general philosophy, drawing mostly on those of R. Hilpinen, A. L. Thomasson, L. R. Baker and P. Bloom, since their theories present themselves as general theories of artifacts, capable of being applied to any artifact kind. Furthermore, since I take legal systems to be institutional in character, and thus different from 'ordinary' artifacts, I will introduce certain elements of social (institutional) ontology and set the ontological grounds for 'institutional artifacts' as a distinct artifact type (Section 4). This will form the basis of a rough sketch of what an artifact theory of law might look like and what the challenges for such a theory might be (Section 5).
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Pravni vjesnik, 2015
It is often said that, in contrast to natural kinds, artifacts are mind-dependent, meaning that t... more It is often said that, in contrast to natural kinds, artifacts are mind-dependent, meaning that they somehow depend on either human beliefs or activities. In addition, some specically claim that this mind-dependency of artifacts means that they are concept-dependent, i.e., that they are constituted by the concepts and intentions of humans (artifact authors or creators) and that the latter, in turn, determine what features are relevant for an artifact to be a member of a certain artifact kind. e paper therefore inquires into what these constitutive concepts are and what role they play. It also tries to explain the relationship between these concepts and the 'theoretical' ones. Since the paper's main thesis is that law as such is an artifact or, more precisely, that legal systems are artifacts, it considers the said issue specically in relation to the jurisprudential views on the ontological character of law.
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Revus - journal for constitutional theory and philosophy of law, 2015
The relevance Hart attaches to the rule of recognition, as well as some of its characterisations ... more The relevance Hart attaches to the rule of recognition, as well as some of its characterisations in The Concept of Law, indicate that the rule of recognition is first and foremost a rule in virtue of which other rules are legal rules. It explains the existence of legally valid norms as such. As a matter of conceptual truth, the satisfaction of the rule of recognition constitutes a norm as law. It can thus be said that the rule of recognition plays an important ontological role and thus has the character of a constitutive rule. But what is the rule of recognition constitutive of? Does it constitute merely particular legal rules as members of a system or a particular legal system as a whole? From what Hart says about the rule of recognition, it can be inferred that it certainly serves at least the first function. It is no doubt the constitutive rule of particular legal rules as elements of a system. However, even though this is not what Hart claims (at least not explicitly), one might also be tempted to see it as a constitutive rule of a legal system as such. What I claim in the paper is 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.
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In: M. Jovanović, K. E. Himma, (eds.), Courts, Interpretation, the Rule of Law, Eleven International Publishing, Den Haag, 2014, pp. 167-180
The balancing or weighing of principles by reference to their dimension of weight or importance s... more The balancing or weighing of principles by reference to their dimension of weight or importance seems to represent the prevailing method for solving contradictions (antinomies) arising between legal principles when the latter are applied in practice. However, as I argue in the paper, the method of balancing or weighing might not be the only method for solving antinomies or at least a specific type of antinomy between implicit legal principles (the so-called total-partial antinomy, according to Ross’s taxonomy). Instead of resorting to the prevailing method of weighing or balancing principles, I argue that the criterion for solving the so-called total-partial antinomies between implicit legal principles could also be the classical juridical criterion of speciality (lex specialis derogat legi generali) which is one of the criteria used for solving antinomies between legal rules.
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Diritto e questioni pubbliche, n.12/2012, pp. 183-210
Owing to its methodological approach legal theory is usually divided into descriptive, presumably... more Owing to its methodological approach legal theory is usually divided into descriptive, presumably non-evaluative, and normative, i.e. evaluative and justificatory, legal theory. In her Evaluation and Legal Theory Julie Dickson rejects this dichotomy. She argues that all legal theory is evaluative in one way or another. Therefore, she introduces a dichotomy between indirectly evaluative and directly evaluative legal theory. Whereas directly evaluative legal theory has the task of evaluating law morally, indirectly evaluative legal theory makes evaluative judgements as to what features of law are most important and significant to explain. In my paper I first set out Dickson’s account of the ‘evaluative-but-not-morally-evaluative’ view of legal theory and then critically examine this account. Finally, I make some remarks concerning the fruitfulness of Dickson’s dichotomy between indirectly and directly evaluative legal theory.
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Rechtstheorie, Vol. 44, No. 3, 2013, pp. 395-413
In contemporary legal theory, damage reparation is, by its legal nature, widely believed to be a ... more In contemporary legal theory, damage reparation is, by its legal nature, widely believed to be a form of sanction. This view can be dubbed the so-called sanction-based understanding of damage reparation. It has its source in the Roman law of delict and is greatly inspired by natural law writers, such as H. Grotius and S. Pufendorf. On the other hand, the underlying function of damage reparation is viewed as restitutive. However, by defining damage reparation as a sanction by its legal nature, damage reparation is being oriented towards injurers, while by defining its underlying function as restitutive, it is, prima facie, being oriented towards the injured party. The difference in orientation of damage reparation with regard to the determination of its legal nature and underlying function points to an inconsistency of the traditional jurisprudential explanation of damage reparation. Moreover, this difference is at odds with the principle of legal coordination as an essential feature of tort law relationships, which also makes the traditional jurisprudential explanation of damage reparation incoherent. Taking into account both the importance that functions have in providing justification for legal institutions and the principle of legal coordination as an essential feature of tort law relationships, one can infer that different orientations of damage reparation are the consequence of an inadequate sanction-based understanding of the legal nature of damage reparation. The sanction-based understanding is inadequate for several other important reasons as well. This calls for the refutation of the sanction-based understanding and the endorsement of a new viewpoint on the legal nature of damage reparation which would allow for a consistent and coherent theoretical explanation of the connection between the legal nature and underlying function of damage reparation. This view can be dubbed a duty-based understanding of damage reparation.
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Archiv fuer Rechts- und Sozialphilosophie, Vol. 99, No. 1, 2013, pp. 68-76
The paper first outlines the thesis on (the means of) execution as a kind of legal sanction (esp.... more 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.
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Papers in Croatian by Luka Burazin
Zbornik Pravnog fakulteta u Zagrebu, 2023
U radu se utvrđuje u čemu se sastoji “primjena Ustava” od strane (hrvatskih) redovnih sudova. Na ... more U radu se utvrđuje u čemu se sastoji “primjena Ustava” od strane (hrvatskih) redovnih sudova. Na temelju pregleda relevantne literature i predistraživanja hrvatske sudske prakse, za potrebe istraživanja istaknuto je šest paradigmatskih slučajeva primjene Ustava od strane redovnih sudova (činjenice slučaja neposredno uređene ustavnim pravilom, zakonska praznina, izbježiva antinomija in abstracto između ustavne i zakonske norme, izbježiva antinomija in concreto između ustavne i zakonske norme, neustavnost pojedinačne sudske i upravne odluke i neizbježna antinomija in abstracto između ustavne i zakonske norme). Istaknuti slučajevi analizirani su metodom argumentacijske analize sudačkog rasuđivanja u okviru shema unutarnjeg i vanjskog opravdanja sudske odluke u primjerima (uglavnom) osmišljenima na temelju konkretnih slučajeva iz hrvatske sudske prakse.
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Papers by Luka Burazin
The paper aims to explicate what kind of entity legal offices are and what their specific mode of existence amounts to. That is, it aims to explicate in virtue of what legal offices can be said to exist. Also, it aims to explain in virtue of what these offices can be said to be legal. While the basic idea rests on an antirealist ontological position, according to which artifacts, and thus, per hypothesis, legal offices, depend on the human mind (i.e., they are mind-dependent entities) in the sense that the mental states of the authors of artifacts and the concepts on which these states are based are (at least partly) constitutive of their existence, the paper strives to show the relevance of the actual use of legal offices for their existence.
Papers in Croatian by Luka Burazin
The paper aims to explicate what kind of entity legal offices are and what their specific mode of existence amounts to. That is, it aims to explicate in virtue of what legal offices can be said to exist. Also, it aims to explain in virtue of what these offices can be said to be legal. While the basic idea rests on an antirealist ontological position, according to which artifacts, and thus, per hypothesis, legal offices, depend on the human mind (i.e., they are mind-dependent entities) in the sense that the mental states of the authors of artifacts and the concepts on which these states are based are (at least partly) constitutive of their existence, the paper strives to show the relevance of the actual use of legal offices for their existence.
As regards the possibility of using empirical research in constructing the generl theory of law, the data obtained on the basis of this research point to the potential of empirical research to serve as a signpost for establishing the limits of the concept of law but the question as to its ability to fully replace the legal theorists intutive views as the usual instrument of methodology in general theory remains open. In doing so, the importance of the so-called internal point view and legal consciousness as the starting points for developing analytical theory of law is highlighted.