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Contents

Introduction

1. Presuppositions of Legal Theory and Practice

2. The Fact and its Approach in Philosophy and in Law
  2.1. The Understanding of Facts
  2.2. The Cognition of Facts
  2.3. Brute Fact and Institutional Fact
  2.4. The Particularity of the Appearance of Fact in Law

3. The Imputative Character of the Judicial Establishment of Facts
  3.1. Logic of Problem Solving and Logic of Justification
  3.2. The Difference between Cognition and Judging
  3.3. The Selective Role of Relevancy
  3.4. Fact and Case: a Mental Transformation
  3.5. The Practical Dependency and Context of Qualification
  3.6. Descriptivity Excluded from the Normative Sphere
  3.7. The Unity of Fact and Value
  3.8. The Unity of Fact and Law
  3.9. The Reflexivity of Factual and Normative Operations
  3.10. The Limited Nature of Cognition and the Indefinability of Language
  3.11. The Non-cognitive Dialectic of Normative Classification
  3.12. Ascriptivity as End Result

4. The Judicial Establishment of Facts and its Procedurality
  4.1. The Constitutive Nature of the Establishment of Facts
  4.2. Evidence and Procedurality
  4.3. The Role of the Force of Law

5. The Nature of the Judicial Establishment of Facts
  5.1. As the Play of a Game
  5.2. As the Precondition to Mete out a Legal Sanction
  5.3. As a Non-cognitively Homogeneous Activity
  5.4. As the Reproduction of the Law as a System

Appendix I: Kelsen's Theory of Law-Application: Evolution, Ambiguities, Open Questions
  1. "Hauptprobleme der Staatsrechtslehre"
  2. "Allgemeine Staatslehre"
  3. "Reine Rechtslehre"
  3.1. Theory of Gradation
  3.2. The Constitutive Character of Law-application
  3.3. Theoretical Question Marks
  3.4. The Theory of Interpretation
  3.5. A Procedural View of Law?
  3.6. Self-transcendence of the Pure Theory?
  3.7. Who Watches the Watchman?

Appendix II: Judicial Reproduction of the Law in an Autopoietical System?

Bibliography
Index of Names
Index of Normative Materials
Subject Index

Postface I: An Investigation into the Nature of the Judicial Establishment of Facts [1990/1994 &1991/1992 & 2009]
  The Investigation
  What Kind of Path has been Covered?
  How can we Get Closer to a Feasible Answer?
  The Range of Problems in Connection with Facts
  Theoretical Advance

Postface II: What is to Come after Legal positivism is Over? Debates Revolving around the Topic of »The Judicial Establishment of Facts« [2001]
  Natural Law and Legal Positivism
  Legal Positivism and its Logic
  Autopoiesis in Praxis
  Formalism and Antiformalism in Kelsen-interpretation
  On Facts
  Fact and Law
  Inseparability within the Prevailing Totality
  Answers in Deconstructionism

Indexes

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