François Ost: from a Jupiterian Kelsen to a ‘democratic’(?) Hermes. On Dynamics and Mediation. A Hegelian Opposition

<p>In this paper, I intend to discuss two models of judge proposed by François Ost: Jupiter and Hermes. According to Ost, Jupiter represents both Kelsen’s positivism and iusnaturalism. In what follows, I intend to prove that Ost’s characterization of Kelsen is partial. It is restricted to cons...

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Bibliographic Details
Main Author: Miguel Herszenbaun
Format: Article
Language:Spanish
Published: Universidad Nacional del Nordeste 2021-11-01
Series:Nuevo Itinerario
Subjects:
Online Access:https://revistas.unne.edu.ar/index.php/nit/article/view/5714
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Summary:<p>In this paper, I intend to discuss two models of judge proposed by François Ost: Jupiter and Hermes. According to Ost, Jupiter represents both Kelsen’s positivism and iusnaturalism. In what follows, I intend to prove that Ost’s characterization of Kelsen is partial. It is restricted to consider the static character of his theory omitting Kelsen’s legal dynamics. Besides, I will show the limits of Ost’s equation between positivism and iusnaturalism. In regard to Hermes, Ost claims that it has a democratic character due to formal aspects of Law and its process and to freedom of speech. However, I intend to prove that Hermes is strongly anti-democratic: the ruling es immediate and based on a moral intuition. This implies that it is unilateral, partial, and antidemocratic. Finally, I will contrast Hermes with Hegel’s concept of mediation. I do not intend to fully discuss Hegel’s political and legal philosophy, but I do intend to show that Hegel’s concept of mediation can provide an answer to Hermes’ deficiencies.<strong></strong></p>
ISSN:1850-3578