The Many Fates of Legal Positivism (original) (raw)
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 Legal Disagreements
2009
This paper deals with the possibility of faultless disagreement in law. And it does looking for other spheres in which faultless disagreement seems possible, mainly the matters of taste and the ethical matters. Three possible accounts are explored: the realist account, the relativist account, and the expressivist account. The paper tries to show that in the case of legal disagreements there is a place for an approach able to take into account our intuitions in the sense that legal disagreements are genuine disagreements and, sometimes, these disagreements are faultless.
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.
Legal Positivism's Internal Morality (2023)
Oxford Journal of Legal Studies , 2023
This article examines the jurisprudential arguments elaborated in David Dyzenhaus's The Long Arc of Legality. In particular, it looks into the main claim of the book: that the fact of 'very unjust laws' is central to illuminating the idea of law's authority, the elaboration of which Dyzenhaus takes to be the purpose of legal theory. The article analyses Dyzenhaus's own normative proposal in this matter, which consists of a version of legal positivism committed to Lon Fuller's principles of the internal morality of law, with the corollary of a conception of the judicial role as bound to a duty to apply these internal principles of legality when exercising their main function. While I cast some doubts on the feasibility of constructing the judge's function that way, in the end I celebrate Dyzenhaus's attempt at refining legal positivism's identity, especially in light of the ongoing debate with contemporary anti-positivism.
THE CONSTRUCTION OF LEGAL POSITIVISM AND THE MYTH OF LEGAL INDETERMINACY
This paper compares the pragmatist view of law as boundaryless and endogenous with the competing view--generally known as “legal positivism”--which sees law as separate, exogenous and autonomous. Both models are reflected in the methodology of American law; yet the two are at odds. They imply a deep inconsistency in our corporate belief in what law is, giving rise to radically different approaches to legal interpretation. According to the positivist model, law, considered as an adjudicative matrix, either succeeds or fails on its own. When deciding difficult cases this means the positivist must accept the problematic possibility of “legal indeterminacy.” This revision includes a postscript on the pragmatist theory of legal interpretation.
Grounding-Based Formulations of Legal Positivism
Philosophical Studies, 2020
The goal of this paper is to provide an accurate grounding-based formulation of positivism in the philosophy of law. I start off by discussing some simple formulations, based on the ideas that social facts are always either full or partial grounds of legal facts. I then raise a number of objections against these definitions: the full grounding proposal rules out possibilities that are compatible with positivism; the partial grounding proposal fails, on its own, to vindicate the distinctive role that is played by social facts within positivist accounts of law. Then, I present a more adequate and insightful formulation capable of solving their problems, which crucially relies on a robust notion of a social enabler. Finally, I model inclusive and exclusive positivism on the resulting template, and set out the advantages of the ground-enablers proposal.
Legal Disagreements and Legal Positivism
This paper deals with the possibility of faultless disagreement in law. It does this by looking to other spheres in which faultless disagreement appears to be possible, mainly in matters of taste and ethics. Three possible accounts are explored: the realist account, the relativist account, and the expressivist account. The paper tries to show that in the case of legal disagreements, there is a place for an approach that can take into account our intuitions in the sense that legal disagreements are genuine and at times faultless.