Relevant bibliographies by topics / Law Legal positivism

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Academic literature on the topic 'Law Legal positivism'

Author: Grafiati
Published: 4 June 2021
Last updated: 1 February 2022

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Journal articles on the topic "Law Legal positivism"

1

Arias Castillo, Tomás A., and Luis Alfonso Herrera Orellana. "Positivismo jurídico, Estado de Derecho y libertad: una propuesta de formulación = Legal Positivism, Rule of Law and Freedom: A Proposal for Formulating." EUNOMÍA. Revista en Cultura de la Legalidad, no. 16 (March 29, 2019): 65. http://dx.doi.org/10.20318/eunomia.2019.4692.

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Resumen: En el presente trabajo se exploran las posibles vías de conexión entre el positivismo jurídico, el liberalismo clásico y el Estado de Derecho, tarea que siempre se ha visto dificultada por la visión antipositivista de los autores liberales. En tal sentido, se analizan y responden las críticas antipositivistas con el propósito de mostrar la compatibilidad entre el positivismo jurídico y el ideal del Estado de Derecho. Palabras clave: Liberalismo clásico, positivismo jurídico, Estado de Derecho, separación entre derecho y moral, fuentes sociales del derecho.Abstract: This article explores possible connections between legal positivism, classical liberalism and the rule of law, a task that has been obstructed by the anti-positivist vision of liberal authors. In that sense, anti-positivists critics are analyzed and contested with the purpose of showing the compatibility between legal positivism and the rule of law ideal. Keywords: Classical liberalism, legal positivism, rule of law, separation between law and morals, social sources of the law.
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Leiter, Brian. "Realism, Hard Positivism, and Conceptual Analysis." Legal Theory 4, no. 4 (December 1998): 533–47. http://dx.doi.org/10.1017/s1352325200001130.

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The American Legal Realists, as I read them, are tacit legal positivists: they presuppose views about the criteria of legality that have affinities with positivist accounts of law in the sense that they employ primarily pedigree tests of legal validity. Ever since Ronald Dworkin's well-known critique of H.L.A. Hart's positivism a generation ago, however, it has been hotly contested whether there is anything about positivism as a legal theory that requires that tests of legal validity be pedigree tests. So-called Soft or Inclusive versions of positivism are willing to relax the restrictions on the content of a Rule of Recognition to admit non-pedigree criteria of legal validity; Hard or Exclusive versons of positivism deny that such a move is compatible with the central commitments of positivism. Hard Positivism, of which Joseph Raz has been the leading proponent, thus competes with various Soft Positivisms, defended by, among others, Coleman, Lyons, Soper, Waluchow, and now, explicitly, Hart himself in the “Postscript.” If the Realists are positivists, as I claim, then it cannot be the case that Soft Positivism is a genuinely positivistic doctrine. But there is more at stake here than just labels. Realist arguments for the indeterminacy of law—arguments central to the whole Realist enterprise—depend crucially on their tacit Hard Positivism. If, in fact, positivism has a more relaxed view of the criteria of legality than Hard Positivism supposes, then Realist arguments depend on unsound tacit premises about legal validity. What is at stake, then, is not whether Realists should be called (tacit) “Positivists” or merely (tacit) “Hard Positivists,” but whether their underlying view of the criteria of legality is sound. It can only be so if the best arguments favor Hard Positivism.
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Dyzenhaus, David. "Legality Without The Rule of Law? Scott Shapiro on Wicked Legal Systems." Canadian Journal of Law & Jurisprudence 25, no. 1 (January 2012): 183–200. http://dx.doi.org/10.1017/s0841820900005403.

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InLegality,Scott Shapiro – a leading legal positivist – analyses the problem of a wicked legal system in a way that brings him close to natural law positions. For he argues that a wicked legal system is botched as a legal system and I show that such an argument entails a prior argument that there is some set of standards or criteria internal to law which are both moral and legal. As a result, the more successful a legal order is legally speaking, the better the moral quality of its law, and the more it is a failure morally speaking, the worse the legal quality of its law. It is such moral features of law that Shapiro concedes make it plausible to account for law’s claim to justified authority over its subjects. However, Shapiro cannot, as a legal positivist, accept this entailment. His book thus brings to the surface and illuminates a central dilemma for legal positivism. If legal positivists wish to account for the authority of law they have to abandon legal positivism’s denial that law has such moral features. If they do not, they should revive a form of legal positivism that specifically abjures any claim to account for law’s normative nature.
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Perry, Stephen R. "The Varieties of Legal Positivism: Critical Notice: Inclusive Legal Positivism by W.J. Waluchow." Canadian Journal of Law & Jurisprudence 9, no. 2 (July 1996): 361–81. http://dx.doi.org/10.1017/s0841820900003490.

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It is not easy to come up with a characterization of legal positivism that is not vacuous and yet at the same time is sufficiently general to capture the myriad theories of law to which, over the years, the positivist label has been attached. Wil Waluchow suggests in his recent book Inclusive Legal Positivism that the core of positivism is the simple claim that any connections between law and morality are contingent only, dependent on whether the right kinds of laws have been created in the right kinds of ways (81). As a thumb-nail sketch of positivism this suggestion is plausible enough, so far as it goes, but it is important to note that it focuses on the possible connection between moral value and law, as opposed to that between moral value and theories of law. For there is an important strand in positivist thought that is as concerned with denying the latter type of connection as it is with denying the former. We can, in other words, distinguish between what we might call methodological and substantive versions of positivism.
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Coleman, Jules L. "Incorporationism, Conventionality, and the Practical Difference Thesis." Legal Theory 4, no. 4 (December 1998): 381–425. http://dx.doi.org/10.1017/s1352325200001099.

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H.L.A. Hart's The Concept of Law is the most important and influential book in the legal positivist tradition. Though its importance is undisputed, there is a good deal less consensus regarding its core commitments, both methodological and substantive. With the exception of an occasional essay, Hart neither further developed nor revised his position beyond the argument of the book. The burden of shaping the prevailing understanding of his views, therefore, has fallen to others: notably, Joseph Raz among positivists, and Ronald Dworkin among positivism's critics. Dworkin, in particular, has framed, then reframed, the conventional understanding, not only of Hart's positivism, but of the terms of the debate between positivists and him. While standing on the sidelines, Hart witnessed the unfolding of not only a lively debate between positivists and Dworkin, but an equally intense one among positivists as to positivism's (and his) core claims. The most important debate has been between so-called inclusive and exclusive positivists: a debate as much about Hart's legacy as about the proper interpretation of legal positivism.
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Benditt, Theodore M. "The Endless Dialectic of Legal Thought." Dialogue 34, no. 4 (1995): 815–20. http://dx.doi.org/10.1017/s001221730001115x.

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Norm and Nature: The Movements of Legal Thought, by Roger Shiner, is an intricate book with the perhaps surprising thesis that the outstanding problem in legal philosophy, the conflict between positivism and natural law, is irresolvable. The controversy is doomed to a never-ending cycle because “sophisticated positivism follows from positivism's difficulties with simple positivism … anti-positivism follows from sophisticated positivism's difficulties with simple positivism; [and] simple positivism follows from positivism's difficulties with anti-positivism” (p. 281). For legal theory, then, an understanding of law is simply an understanding of why legal theory is thus “condemned to endless dialectic” (p. 324). And the reason is found in the nature of law itself and the perennial tension between, on the one hand, certainty and procedure and, on the other, flexibility and substance.
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Giudice, Michael. "Existence and Justification Conditions of Law." Canadian Journal of Law & Jurisprudence 16, no. 1 (January 2003): 23–40. http://dx.doi.org/10.1017/s0841820900006615.

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Legal systems such as those in the United States and Canada, which include fundamental moral rights or provisions in their constitutions, present an interesting and difficult problem for legal positivists. Are such moral standards to count among the existence or validity conditions of laws in those systems, or are they better understood as fundamental objectives or justification conditions which laws may or may not achieve or respect in practice? The first option, known as inclusive legal positivism, expands the traditional positivist separation thesis to mean that although there is no necessary connection between law and morality in general, it is possible that in some systems it is a necessary truth that laws reproduce or satisfy certain demands of morality. The second option, known as exclusive legal positivism, denies this possibility, and maintains instead that it is never a necessary condition that laws reproduce or satisfy certain demands of morality, even if such demands are constitutionally recognized. On the exclusive account, in the context of constitutional states such as the U.S. and Canada, the separation thesis is expanded to mean that there is no necessary connection between the existence and content of laws and the demands of political morality typically included in constitutions. In this paper I defend exclusive positivism and argue that it best follows from traditional positivist commitments and avoids what I take to be a critical problem with inclusive positivism. Further, I argue that the concepts, distinctions, and arguments deployed in the internal positivist debate are also of value in the wider debate between H.L.A. Hart and Ronald Dworkin.
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Muslihun, Muslihun. "Legal Positivism, Positive Law, and the Positivisation of Islamic Law In Indonesia." Ulumuna 22, no. 1 (May 28, 2018): 77–95. http://dx.doi.org/10.20414/ujis.v22i1.305.

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This study elucidates the legal positivism and critically compares it with other schools of philosophy of law. Debates on the legislation of Islamic law in Indonesian can be traced back to the discursive practice of legal philosophy such as legal positivism. Indonesia as a law-based state (rechtsaat) adopts to a considerable degree legal positivism. However, it cannot be said that pure legal positivism, as it is promoted by its thinkers such as John Austin and Hans Kelsen, is applied because the Indonesian legal system accept morality such as religious and customary norms as the ground of legislation. By examining the postivisation of Islamic law, that is the legislation of Islamic law into the state legal system, this study argues that morale, ethics or norms derived from religion and customs are accepted to the state law. They can be used as the source of justice while justice in the positivists’ view refers to the code and statute endorsed by those who are in authority or power to do that. It thus denies the view of legal positivists who reject ethics or norms beyond the state law as non-law.
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Waldron, Jeremy. "Kant's Legal Positivism." Harvard Law Review 109, no. 7 (May 1996): 1535. http://dx.doi.org/10.2307/1342024.

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MORESO, JOSÉ JUAN. "Legal Positivism and Legal Disagreements." Ratio Juris 22, no. 1 (February 12, 2009): 62–73. http://dx.doi.org/10.1111/j.1467-9337.2008.00412.x.

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Dissertations / Theses on the topic "Law Legal positivism"

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Casey, Brian P. "Natural law and the challenge of legal positivism." Diss., Columbia, Mo. : University of Missouri-Columbia, 2007. http://hdl.handle.net/10355/4842.

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Thesis (Ph. D.)--University of Missouri-Columbia, 2007.
The entire dissertation/thesis text is included in the research.pdf file; the official abstract appears in the short.pdf file (which also appears in the research.pdf); a non-technical general description, or public abstract, appears in the public.pdf file. Title from title screen of research.pdf file (viewed on January 30, 2008) Vita. Includes bibliographical references.
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Martin, Margaret Ellen. "Raz's exclusive legal positivism : the tension between law and morality." Thesis, University of Cambridge, 2006. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.614073.

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Glahn, Jason C. "Is hard positivism too hard to swallow? /." free to MU campus, to others for purchase, 2004. http://wwwlib.umi.com/cr/mo/fullcit?p1426061.

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Himma, Kenneth Einar. "A positivist account of legal principles /." Thesis, Connect to this title online; UW restricted, 2001. http://hdl.handle.net/1773/5720.

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McMorrow, Thomas. "Law at L'Arche : reflections from a critical legal pluralist perspective." Thesis, McGill University, 2007. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=112606.

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This thesis is an on-the-ground exploration of the radical hypothesis that each individual human being bears responsibility for constructing order out of the overwhelming plurality and dissonance of normative experience. It constitutes an empirically-based, critical legal pluralist analysis of everyday life at L'Arche Montreal---a community serving persons with intellectual disabilities. The aim of this thesis is to highlight the active role persons with intellectual disabilities living at L'Arche Montreal play in constructing legal normativity.
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Chilovi, Samuele. "Grounding Legal Reality." Doctoral thesis, Universitat de Barcelona, 2019. http://hdl.handle.net/10803/667056.

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The four main chapters of this thesis, while each largely autonomous, collectively provide a study of the relation between grounding and supervenience, and a comprehensive application of grounding theory to the philosophy of law. Chapter 1 argues that a supervenience relation interestingly weaker than necessitation can be used to capture a substantive connection between grounding and modality. Chapter 2 argues that metaphysical grounding is the relation of dependence that connects legal facts to their determinants, and that the positivism/anti-positivism debate in legal philosophy involves competing claims on the grounds of legal facts. Chapter 3 criticizes extant grounding- based formulations of legal positivism offered by Rosen (2010) and Plunkett and Shapiro (2017), and puts forward a novel and insightful formulation that is capable of solving their problems, which crucially relies on the notion of a social enabler. Finally, Chapter 4 shows that Hume’s Law – the thesis that one cannot derive an ‘ought’ from an ‘is’ – poses no significant threat to legal positivism or moral naturalism, both understood as views about grounding.
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Kirby, Coel Thomas. "Exorcising Matovu's ghost : legal positivism, pluralism and ideology in Uganda's appellate courts." Thesis, McGill University, 2008. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=112605.

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In 1966, the High Court of Uganda legitimised the new nation's first coup d'etat. After two decades of civil war, Ugandans enacted their first popular constitution in 1995. However, the judiciary's dominant positivist ideology, Matovu's ghost, still haunts the new legal order. The author sets out this ideology's presumptions and then critiques them against an alternative, pluralist map of laws in Uganda.
The constructive analysis of recent case law (or lack thereof) that follows shows how this ideology undermines the constitution's promises of equality and freedom. This pluralist methodology is also essential to explain contemporary crises like the Lord's Resistance Army, arms proliferation in Karamoja and Museveni's "no-party" rule. In conclusion, exorcising Matovu's ghost is a priority for Ugandans and the process deserves considered thought for legal scholars advocating the "rule of law" or interventions by the International Criminal Court.
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Jenkins, Maricarmen Marshall. "Philosophical assumptions in legal philosophy : a critique of contemporary philosophy of law /." *McMaster only, 1998.

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Phillips, Cindy L. "Rescuing Inclusive Legal Positivism from the Charge of Inconsistency." Digital Archive @ GSU, 2011. http://digitalarchive.gsu.edu/philosophy_theses/81.

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Scott Shapiro, an exclusive legal positivist, argues that inclusive legal positivism is inconsistent with the view that legal norms must conceptually provide reasons for agents of a legal system to act in specified ways. I defend inclusive legal positivism from Shapiro's charge of inconsistency.
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Cassagne, Juan Carlos. "New constitutionalism and the foundations of the legal system." THĒMIS-Revista de Derecho, 2017. http://repositorio.pucp.edu.pe/index/handle/123456789/107730.

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Inside the field of Law, the usual question about the meaning of a determined concept or the question towards what it makes reference to has alwaysbeen complicated. In the last years, different events have produced that philosophical trends reconsider the understanding of the legal system.In the present article, the author does a presentation of what new constitutionalism means and its opinion towards it. The author also makes a critical analysis of the positivist and jusnaturalist visions, connecting them with the understandingof Law and the legal system, making an emphasis on Administrative Law.
En el campo del Derecho, la pregunta sobre qué significa o a qué hace referencia determinado concepto siempre ha sido complicada. En los últimos años diversos acontecimientos han ocasionado que corrientes filosóficas replanteen la forma de entender el orden jurídico.En el presente artículo, el autor hace una presentación de qué se entiende por nuevo constitucionalismo y su opinión sobre el mismo. Asimismo, realiza un análisis crítico de los planteamientos positivistas e iusnaturalistas, conectando los mismos con el entendimiento del Derecho y del orden jurídico, poniendo énfasis en la rama del Derecho Administrativo.
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Books on the topic "Law Legal positivism"

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Legal positivism in American jurisprudence. Cambridge: Cambridge University Press, 1998.

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Margaret, Martin. Judging positivism. Oxford: Hart Publishing, 2014.

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The positivist science of law. Aldershot, Hants [England]: Avebury, 1989.

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Tom, Campbell. Prescriptive legal positivism: Law, rights and democracy. London: UCL, 2004.

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In defense of legal positivism: Law without trimmings. Oxford: Oxford University Press, 1999.

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Murphy, James Bernard. The philosophy of positive law: Foundations of jurisprudence. New Haven, CT: Yale University Press, 2006.

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Kammerhofer, Jörg, and Jean d' Aspremont. International legal positivism in a post-modern world. Cambridge, United Kingdom: Cambridge University Press, 2014.

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Rovira, Mónica García-Salmones. The project of positivism in international law. Oxford, United Kingdom: Oxford University Press, 2013.

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Berkowitz, Roger. Leibniz's legal science and the birth of positive law. [Toronto]: Faculty of Law, University of Toronto, 2002.

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Institutions of law: An essay in legal theory. New York: Oxford University Press, 2007.

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Book chapters on the topic "Law Legal positivism"

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Houlgate, Laurence D. "Legal Positivism." In AMINTAPHIL: The Philosophical Foundations of Law and Justice, 35–57. Cham: Springer International Publishing, 2017. http://dx.doi.org/10.1007/978-3-319-51121-4_3.

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Harris, J. W. "Legal Positivism." In The New Palgrave Dictionary of Economics and the Law, 1203–7. London: Palgrave Macmillan UK, 2002. http://dx.doi.org/10.1007/978-1-349-74173-1_228.

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Coleman, Jules L., and Brian Leiter. "Legal Positivism." In A Companion to Philosophy of Law and Legal Theory, 228–48. Oxford, UK: Wiley-Blackwell, 2010. http://dx.doi.org/10.1002/9781444320114.ch14.

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Bix, Brian H. "Legal Positivism." In The Blackwell Guide to the Philosophy of Law and Legal Theory, 29–49. Oxford, UK: Blackwell Publishing Ltd, 2008. http://dx.doi.org/10.1002/9780470690116.ch2.

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Spaak, Torben. "Legal Realism and Legal Positivism." In Law and Philosophy Library, 241–59. Cham: Springer International Publishing, 2014. http://dx.doi.org/10.1007/978-3-319-06167-2_15.

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Ehrenberg, Kenneth M. "Exclusive Legal Positivism." In Encyclopedia of the Philosophy of Law and Social Philosophy, 1–4. Dordrecht: Springer Netherlands, 2020. http://dx.doi.org/10.1007/978-94-007-6730-0_111-2.

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Woodbury-Smith, Kara. "Inclusive Legal Positivism." In Encyclopedia of the Philosophy of Law and Social Philosophy, 1–7. Dordrecht: Springer Netherlands, 2018. http://dx.doi.org/10.1007/978-94-007-6730-0_62-2.

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d’Aspremont, Jean. "International Legal Positivism." In Encyclopedia of the Philosophy of Law and Social Philosophy, 1–7. Dordrecht: Springer Netherlands, 2017. http://dx.doi.org/10.1007/978-94-007-6730-0_63-1.

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Weinberger, Ota. "Elements of Institutional Legal Positivism." In Law, Institution and Legal Politics, 3–29. Dordrecht: Springer Netherlands, 1991. http://dx.doi.org/10.1007/978-94-011-3458-3_1.

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Grenholm, Carl-Henric. "Legal positivism in Lutheran ethics." In Lutheran Theology and Secular Law, 15–27. Abingdon, Oxon [UK]; New York, NY: Routledge, 2018. | Series: ICLARS series on law and religion: Routledge, 2018. http://dx.doi.org/10.4324/9781315276342-2.

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