The Many Fates of Legal Positivism (original) (raw)
Related papers
2009
Abstract: This short paper will be presented at a panel on" Legal Positivism: For and Against?" at the annual meeting of the Association of American Law Schools in New Orleans, January 9, 2010. It attempts to identify the theoretical considerations that explain why legal positivism is the dominant view among legal philosophers.
Legal Positivism: Still Descriptive and Morally Neutral
Oxford University Press eBooks, 2007
It has become increasingly popular to argue that legal positivism is actually a normative theory, and that it cannot be purely descriptive and morally neutral as H.L.A. Hart has suggested. This article purports to disprove this line of thought. It argues that legal positivism is best understood as a descriptive, morally neutral, theory about the nature of law. The article distinguishes between five possible views about the relations between normative claims and legal positivism, arguing that some of them are not at odds with Hart's thesis about the nature of jurisprudence, while the others are wrong, both as expositions of legal positivism or as critiques of it. Legal positivism does not necessarily purport to justify any aspect of its subject matter, nor is it committed to any particular moral or political evaluations.
Why Legal Positivism Once Seemed Exciting
This paper extends previous work of mine, joining together three topics: (1) Kant's legal theory, with its emphasis on Right mutual independence; (2) how to make normative sense of the law of private wrongs; and (3) the question of whether some form of legal positivism--the view that legal norms are valid, if they are, in virtue of their sources, not in virtue their moral merits--is true. I argue that a background picture of what morality might be is part of what makes legal positivism seem interesting and compelling, and that the debate about legal positivism cannot be agnostic about what morality might be.
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, Natural Law, and Normativity
2021
In this thesis, I discuss and evaluate five theories of jurisprudence explaining how each one answers two central questions. The first, the Grounding Question, asks what it is that makes something a law. The second question, the Normative Question, asks why it is that laws ought to be followed. I use these questions to establish four desiderata for a theory of jurisprudence: a satisfactory theory must answer the Grounding Question and explain its answer, and it must do the same for the Normative Question. The five theories fall into two historically opposed categorizations: legal positivism and natural law theory. In section 2, I explain three positivist and two natural law theories, highlighting how each answers the central questions. In section 3, I discuss two more desiderata that help to explain some of the motivations for holding each view. Finally, in section 4, I compare each theory’s answer to the central questions. I find that while each theory has a satisfactory answer to ...
(Review) Critical legal positivism by Kaarlo Tuori
2003
Kaarlo Tuori, professor of law, judge, and counsellor to the Constitutional Committee of the Finnish Parliament, has embarked on an ambitious project. He aims to build on the positivism of Kelsen and Hart, but to discover a normative justification of law which goes beyond their limited validity claims. This is the 'critical' element which he adds to 'legal positivism'. Kelsen's basic norm and Hart's rule of recognition are irreducible underlying principles. The arbitrary nature of such principles is intellectually suspect, while their internal self referentiality renders them morally sterile. The law is the law -because we recognise it as such or because it is founded on the basic norm -and as such it is valid. This leads to a lack of critical purchase, which is the fundamental drawback of positivism when confronted by natural law or other ethically based theories. Classical mid-twentieth century positivism offers no ethical foundation outside the declared law from which we may criticise unjust laws.
Supremasi Hukum: Jurnal Kajian Ilmu Hukum
This article is a result of study that aims to explain the importance of the thought of legal positivism. The rapid development of science and technology can cause problems in life. The demands of the necessities of life to be fulfilled by human beings. Therefore, the development of legal positivism as a legal discipline closely related to the rational method of legal thinking becomes very important. There are various issues that require assertiveness and legal certainty to solve them. Understand how laws in legislation are important in law science, because law embraces the principle of legality in the system of state positive law norms. The study method used is literature with philosophical approach. From the results of the study shows that the study of legal positivism is very important to understand the law in writing in the legislation. Deductive that became characteristic in the method of reasoning legal positivism to get a correct understanding of the law of the general provis...
Positivism, Legal Validity, and the Separation of Law and Morals
The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between " standard positivism " and " post-Hartian positivism ". Then we will consider various kinds of relations between law and morality that are worth of jurisprudential interest, and will explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should be taken into account, and what kind of such relations are indeed of no import at all. The upshot of this analysis consists in highlighting the distinction between two different dimensions of legal validity (formal validity and material validity respectively), and in pointing out that the positivist separability thesis can apply to formal validity only; on the contrary, when the ascertainment of material validity is at stake, some form of moral reasoning may well be involved (and, here and now, necessarily is involved). The essay concludes with some brief remarks on the persisting importance of the positivist jurisprudential project.
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.