The British Tradition of Legal Positivism (original) (raw)
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W I S D O M Special Issue 1(1), 2021 PHILOSOPHY OF LAW, 2021
This article examines the peculiarities of the evolution of English legal positivism, which was the only direction of understanding law formed by professional lawyers, expressing the specifics of their legal consciousness, focused on understanding positive law and the practice of its implementation. The authors examine the key concepts that define the historical trajectory and problem field of legal positivism in the Anglo-American tradition, analyzing the legal teachings of T. Hobbes, D. Hume, J. Bentham, J. Austin, M. Hale, W. Blackstone, J. W. Salmond and W. J. Brown. The attention is drawn to the fact that Salmond lays down objections to the concept of law as a rule of the state and considers its main shortcomings. In his work “Jurisprudence or the Theory of Law”, Salmond presents the flaws and omissions of the “imperative theory of law”, among the proponents of which he names T. Hobbes, S. von Pufendorf, J. Bentham and J. Austin. Brown believes that the essence of law can be expressed by a set of three concepts: “will”, “command” and “reason”, and the just conception of law implies recognition of the elements of unity, growth and growth that is consciously directed towards the realization and achievement of the goal.
Histories, 2021
This paper is about the shaping of the law understood as a positivist enterprise. Positivist law has been the object of contentious debate. Since the 1960s, and with the surfacing of revisionist histories, it has been suggested that the abstraction of the doctrine of criminal law is due to its categorisation in early histories. However, it is argued here that positivism was hardly an intentional master plan of autocratic social control. Rather, it is important to recognise that historians do not provide a value-free recount of history. This paper examines this assertion by drawing on the writings of the English jurists William Blackstone and his work Commentaries on the Law of England (1765), and James Fitzjames Stephen’s A History of the Criminal Law of England (1883). Taking these scholars not as mere a-historical writers but reflecting on the fact that they inevitably ‘functioned’ as conduits of their own social practise opens an inquiry into the social response to a social need,...
One Myth of the Classical Natural Law Theory: Reflecting on the “Thin” View of Legal Positivism
Ratio Juris
Much controversy has emerged on the demarcation between legal positivism and non-legal positivism with some authors calling for a ban on the-as they see it-nonsensical labelling of legal philosophical debates. We agree with these critics; simplistic labelling cannot replace the work of sophisticated and sound argumentation. In this paper we do not use the term 'legal positivism' as a simplistic label but identify a specific position which we consider to be the most appealing and plausible view on legal positivism. This is the view advocated by Gardner in his paper 'Legal Positivism: 5 1 =2 Myths' (Gardner 2001, 199), where he carefully scrutinises the most convincing and unifying postulates of legal positivism, which he calls "the thin view". The study shows that this thin view presupposes an empirical conception of action that is untenable and implausible since it makes acts of engagement with the law unintelligible to an observer of such acts.
Legal Positivism and the Moral Origins of Legal Systems
Canadian Journal of Law and Jurisprudence
Legal positivists maintain that the legality of a rule is fundamentally determined by social facts. Yet for much of legal history, ordinary officials used legal terminology in ways that seem inconsistent with positivism. Judges regularly cited, analyzed, and predicated their decisions on the 'laws of justice' which they claimed had universal legal import. This practice, though well-documented by historians, has received surprisingly little philosophical attention; I argue that it invites explanation from positivists. After taxonomizing the positivist's explanatory options, I suggest that the most viable option appeals to conceptual change: classical Romans, early modern Europeans, founding-era Americans were not using 'law' (or 'lex' or 'jus') to refer to the subject matter of contemporary legal philosophy. But the strategy is costly. It renders positivism's truth surprisingly parochial. And it supplies new reasons for doubting positivist accounts of contemporary practices, including the treatment of moral principles in modern adjudication.
On Legal Positivism’s Word and our ‘Form-of-(non-)Living’
Global Jurist, 2016
This paper is about two stories. The more reassuring one states that by establishing 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.’
Oran Doyle, Legal Positivism, Natural Law and the Constitution (2009) 31 DULJ 206
(2009) 31 Dublin University Law Journal 206
The jurisprudential debate between legal positivism and Natural Law is entrenched. Despite the differences between them and among them, these theorists are all primarily involved in a description or analysis of what law is. Secondarily, they may be involved in a prescription of what law ought to be and how it ought to be interpreted. A different debate about the Natural Law has occurred within the Irish legal system, most obviously in the constitutional debate over the unenumerated rights doctrine. In particular, it has been suggested that the Irish legal system is in some way inconsistent with legal positivism. The purpose of this article is to argue that such a position is fundamentally mistaken, being based on a confused understanding of the claims made by legal positivists and natural lawyers.
The Puzzled Jurisprude or Four Senses of Positivism
I was puzzled at the inconclusive nature of the discussion at one session of the UK Association of Legal and Social Philosophy 1980 Conference. Delegates seemed to be 'talking past each other'. My thought was that the various usages of the term 'positivism' had not been distinguished sufficiently. The paper is an attempt to fill the gap. Published in (1980) Liverpool Law Review 93-99.
Comment on Simmonds—Legal Positivism and the Limits of the Contemporary Legal Theoretical Discourse
German Law Journal
3 Attacks on legal positivism could proceed from the remarkable fact that positivists tend to shy away from raising issues concerning the role and methodological character of legal doctrinal scholarship. One could say that they more or less consciously seek to drive a wedge between conceptual legal theory and legal doctrinal scholarship (as it is actually reflected in Simmonds's analysis; see Simmonds, The Nature of Law, supra note 2). By the way, this feature of positivism goes back way beyond the emergence of the Hartian account. An extreme version of this "detachment" can be found in Kelsen who sought to purge the "pure theory of law" of doctrinal aspirations, and condemned the work of doctrinal scholars as an illegitimate exercise of political influence. See HANS KELSEN, INTRODUCTION TO THE PROBLEMS OF LEGAL THEORY 3-4 (1992).
"Evolution of Legal Positivism: From Theoretical Foundations to Contemporary Debates" by Isaac
Legal positivisim , 2024
In the vast expanse of legal philosophy, where the ethereal realms of thought intersect with the concrete realities of jurisprudence, one concept stands as a beacon of inquiry: legal positivism. In the profound exploration of this multifaceted doctrine, we embark on a journey of intellectual discovery-a journey encapsulated within the pages of "Evolution of Legal Positivism: From Theoretical Foundations to Contemporary Debates" by Isaac Christopher Lubogo. At the heart of our exploration lies the intricate interplay between law and morality, a terrain fraught with philosophical complexity and juridical significance. Legal positivism, with its resolute assertion of the separability of law from moral imperatives, emerges as a guiding principle, challenging conventional wisdom and beckoning us to probe deeper into the essence of legal norms and their sources of validity. As we embark on this odyssey of thought, we are beckoned by the echo of centuries past, resonating with the voices of legal luminaries who have illuminated the path before us. From the seminal works of John