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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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Horder, Jeremy. "CRIMINAL LAW AND LEGAL POSITIVISM." Legal Theory 8, no. 2 (June 2002): 221–41. http://dx.doi.org/10.1017/s1352325202082034.
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Coyle, Sean. "Thomas Hobbes and the Intellectual Origins of Legal Positivism." Canadian Journal of Law & Jurisprudence 16, no. 2 (July 2003): 243–70. http://dx.doi.org/10.1017/s0841820900003714.
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Legal positivism is often described as the view that there is no necessary relationship between law and moral values. Such an understanding of positivism, this essay argues, is both unfruitful and far removed from the concerns of the figure most often associated with the origins of the positivist tradition, Thomas Hobbes. For Hobbes, legal positivism represented a decisive break with the intellectual tradition of common law scholarship which could no longer provide a satisfactory account of political authority. Positivism began, therefore, as an explanation of the basis of law’s authority within wider theories of social order: legal rules came to be seen as possessing authority not as the specific outcomes of broader moral precepts, but because they represent definitive, posited solutions to the problems of collective living. Analytical positivism, by contrast, centres upon the possibility of descriptive neutrality: an essential property of law, it is felt, is that ascertainment of its content does not necessarily depend upon moral assessments of the purpose of value of legal rules. Such an understanding, it is contended, is only very indirectly related to the traditional concerns of the legal philosopher, and hence marginal to a rich and detailed view of law’s nature. This essay traces the developments which led to the narrowly analytical view of legal positivism, and argues that positivism is much better understood as a series of peculiarly potent reflections on the rule of law: Hobbes’s answers to the questions of social order and the authority of law are often highly unsatisfactory; but it is his questions, rather than those of the modern positivists, which are most worth asking, and which should drive the legal philosopher.
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Kramer, Matthew H. "On the Separability of Law and Morality." Canadian Journal of Law & Jurisprudence 17, no. 2 (July 2004): 315–35. http://dx.doi.org/10.1017/s0841820900003933.
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If there is one doctrine distinctively associated with legal positivism, it is the separability of law and morality. Both in opposition to classical natural-law thinkers and in response to more recent theorists such as Ronald Dworkin and Lon Fuller, positivists have endeavored to impugn any number of ostensibly necessary connections between the legal domain and the moral domain. Such is the prevailing view of legal positivism among people familiar with jurisprudence. During the past couple of decades, however, that prevailing view has come into question among some estimable legal positivists. In particular, Joseph Raz and his followers have queried the importance and the very tenability of an insistence on the separability of law and morality. The present article maintains that the traditional view of legal positivism is correct and that the recent skepticism about it on the part of some positivists is unfounded. When the notion of the disjoinability of law and morality is understood properly as a large array of theses, it proves to be resistant to the challenges that have been mounted against it.
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Schauer, Frederick. "Positivism Before Hart." Canadian Journal of Law & Jurisprudence 24, no. 2 (July 2011): 455–71. http://dx.doi.org/10.1017/s0841820900005270.
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Many contemporary practitioners of analytic jurisprudence take their understanding of legal positivism largely from Hart, and the debates about legal positivism exist largely in a post-Hartian world. But if we examine carefully the writings and motivations of Bentham and even Austin, we will discover that there are good historical grounds for treating both a normative version of positivism and a version more focused on legal decision-making as entitled to at least co-equal claims on the positivist tradition. And even if we conceive of the inquiry in philosophical and not historical terms, there are reasons to doubt the view that a theory of the nature of law is the exclusive understanding of the core commitment of legal positivism. Positivism as a descriptive theory of the nature of law is important, but so too is positivism as a normative theory about the preferable attitude of society or theorists, and so too is positivism as a normative or descriptive theory of adjudication and other forms of legal decision-making. Those who understand positivism and the positivist tradition as being more normative or more adjudication-focused than the contemporary understanding allows are thus committing neither historical or philosophical mistakes, and little would be lost were we to recognize the multiple important contemporary manifestations of the legal positivist tradition.
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Marmor, Andrei. "The Separation Thesis and the Limits of Interpretation." Canadian Journal of Law & Jurisprudence 12, no. 1 (January 1999): 135–50. http://dx.doi.org/10.1017/s0841820900002174.
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There are many versions of legal positivism; perhaps as many as there are legal positivists around. All the versions of legal positivism, however, subscribe to the so-called Separation Thesis. This thesis basically maintains that detenriining what the law is, does not necessarily, or conceptually, depend on moral or other evaluative considerations about what it ought to be in the relevant circumstances. Legal positivists differ, however, and quite substantially, over the appropriate interpretation of this thesis. The so-called ‘strong’, or ‘exclusive’ version of legal positivism maintains that moral considerations never determine the legal validity of norms. ‘Soft’ positivists, on the other hand, do maintain that there is a close relation between legal validity and morality, but they hold that this relation is, at best, a contingent matter; it does not derive from the nature of law or legal reasoning as such. Soft-positivists claim that moral considerations determine legal validity only in certain cases, namely, in those cases which follow from the rules of recognition that happen to prevail in a given legal system.
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COLEMAN, JULES L. "Beyond Inclusive Legal Positivism*." Ratio Juris 22, no. 3 (September 2009): 359–94. http://dx.doi.org/10.1111/j.1467-9337.2009.00430.x.
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Verenich, Vadim. "On relationships between the logic of law, legal positivism and semiotics of law." Sign Systems Studies 39, no. 2/4 (December 1, 2011): 145–96. http://dx.doi.org/10.12697/sss.2011.39.2-4.07.
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The issue of reciprocal relationships between the logic of law, positivistic theory of the logic of law, and legal semiotics is among the most important questions of the modern theoretical jurisprudence. This paper has not attempted to provide any comprehensive account of the modern jurisprudence (and legal logic). Instead, the emphasis has been laid on those aspects of positivist legal theories, logical studies of law and legal semiotics that allow tracing the common points or the differences between these paradigms of legal research. One of the theses of the present work is that, at the comparative methodological level, the limits of legal semiotics and its object of inquiry could only be defined in relation to legal posi tivism and logical studies of law. This paper also argues for a proper position for legal semiotics in between legal positivism and legal logic. The differences between legal positivism, legal logic and legal semiotics are best captured in the issue of referent.
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Priel, Danny. "TROUBLE FOR LEGAL POSITIVISM." Legal Theory 12, no. 3 (September 2006): 225–63. http://dx.doi.org/10.1017/s1352325206060083.
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Many contemporary legal positivists have argued that legal theory is evaluative because it requires the theorist to make judgments of importance. At the same time they argue that it is possible to know “what the law is” without resort to evaluative considerations. I distinguish between two senses of “what the law is”: in one sense it refers to legal validity, in another to the content of legal norms, and I argue that legal positivism is best understood (as indeed some legal positivists have explicitly said) as a claim about legal content. Understood this way, however, it is open to the objection that knowing the content of legal norms requires evaluative considerations for reasons similar to those offered by positivists for thinking that legal theory is requires evaluative considerations. I then distinguish between evaluative considerations in general and moral considerations and argue that because of the subject-matter of legal norms, there are good reasons for thinking that it is moral considerations, and not just any other evaluative considerations, that are required for knowing the content of legal norms.
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Mora-Sifuentes, Francisco M. "Hart y el problema del positivismo jurídico. Una reconstrucción en tres actos = Hart and the problem of legal positivism. A reconstruction in three acts." UNIVERSITAS. Revista de Filosofía, Derecho y Política, no. 31 (December 19, 2019): 2. http://dx.doi.org/10.20318/universitas.2020.5135.
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RESUMEN: Este trabajo tiene como finalidad destacar la contribución específica de H.L.A. Hart sobre el problema del positivismo jurídico. A juicio del autor, el tratamiento que Hart dio a la polémica entre positivismo jurídico y Derecho Natural estuvo marcada por dos extremos aparentemente contradictorios. Por una parte, se abocó a clarificar las diversas tesis que anidan tras la etiqueta “positivismo jurídico”, así como las posiciones que suelen referirse como tales. Al hacerlo abrió el camino para mostrar en qué sentido no resulta ilógico defender algunas tesis asociadas al mismo o negar otras. Por otra parte, y si bien no asumió una posición que afirmase la conexión necesaria entre Derecho y moral, se ocupó también de mostrar en qué sentido tal conexión existe y es importante. Con dicho objetivo, en el primer apartado se ofrece una reconstrucción detallada sobre el tratamiento que Hart hizo sobre el problema del positivismo jurídico. En el segundo se expone el tratamiento del autor sobre el iusnaturalismo, con la intención de comprender el lugar preciso e implicaciones de su conocida tesis del “contenido mínimo Derecho Natural”. En la tercera parte se aborda la teoría elaborada por Hart sobre el positivismo jurídico, esto es, el “positivismo jurídico hartiano” y las tesis por él defendidas. Importante aquí será su posición respecto a la posibilidad de que la regla de reconocimiento pueda incorporar criterios materiales para la identificación jurídica que nos introduce en una nueva etapa de la nunca acabada polémica. ABSTRACT: The aim of this work is to address H.L.A. Hart’s contribution to the problem of legal positivism. According to the author, Hart’s approach to the controversy of Natural Law/Legal Positivism was characterized by two apparently opposing ends. On the one hand, he clarified the label “Legal Positivism” as well as other approaches that are usually referred as such. In doing so, he paved the way to show in which sense it is not illogical to defend some theses associated with it and in which sense it is not. On the other hand, despite he did not take a stand for the necessary connection between Law and Morals, he did show in what sense such connection may exist and why it is important. To this end, section one offers a detailed reconstruction of Hart’s approach to the problem of legal positivism. In section two the author’s approach to Natural Law is explained so that his well-known thesis of “The Minimum Content of Natural Law”, and what it implies, is properly understood. Section three is devoted to Hart’s theory of Legal Positivism that is “Hartian Legal Positivism”, where his main claims are presented. Hart’s claim on the possibility for the rule of recognition to incorporate material criteria for legal identification or legal validity is particular relevant because it introduces us to a new stage of the never-ending controversy. PALABRAS CLAVE: H.L.A. Hart, positivismo jurídico, teorías de derecho natural, positivismo jurídico incluyenteKEYWORDS: H.L.A. Hart, legal positivism, natural law theories, inclusive legal positivism.
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Hamdani, Fitrah. "Paradigm of Legal Thought: Legal Prophetic Perspective." Journal of Transcendental Law 2, no. 1 (August 11, 2020): 11–27. http://dx.doi.org/10.23917/jtl.v2i1.11328.
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Objective: This article aims to discuss ‘criticism of legal prophetic paradigm against legal positivism paradigmMethodology: This research conducted a normative method used by legal positivists. This research is based on a philosophical approach as it is intended to explore the basic assumptions of the legal prophetic paradigm on the lack of the basic assumptions of the legal positivism paradigm.Findings: This paper will discuss the 'criticism of legal prophetic paradigm against legal positivism paradigm' using a philosophical approach as it is intended to explore the basic assumptions of the epistemology basis of the school of thought in legal science through comparison between the school of thoughts in legal science. The legal prophetic paradigm places moral as the main basis as its basic assumption. The verses of Allah and the Hadith of the Prophet regarding justice are the ontological basis of the Paradigm.Application of the Study: The object of legal science is human relations contained within (governed by) legal norms. Law science attempts to understand its object in a "legal" manner, which is from the legal perspective. Understanding something legally means understanding it as law, that is, as legal norms or as the content of legal norms or understanding something as determined by legal norms.Novelty/Originality: The prophetic paradigm can be approached through a Religion Science-based approach. The importance of this approach/religion science in understanding phenomenological law is none other but the occurrence of void or the broken links due to legal positivism thinking that is unable to play a functional role in presenting comprehensive legal justice. Keywords: Legal Positivism Paradigm, Legal Prophetic Paradigm, Basic Assumptions
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Antonov, Michael V., and Vitaly V. Ogleznev. "Legal Positivism and Truth in Law." Proceedings of the Institute of State and Law of the RAS 15, no. 4 (October 30, 2020): 42–61. http://dx.doi.org/10.35427/2073-4522-2020-15-4-antonov-ogleznev.
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Brink, David O. "Legal Positivism and Natural Law Reconsidered." Monist 68, no. 3 (1985): 364–87. http://dx.doi.org/10.5840/monist198568334.
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d’Aspremont, Jean. "Reductionist Legal Positivism in International Law." Proceedings of the ASIL Annual Meeting 106 (2012): 368–70. http://dx.doi.org/10.5305/procannmeetasil.106.0368.
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Brooks, Thom. "Legal Positivism and Faith In Law." Modern Law Review 77, no. 1 (January 2014): 139–47. http://dx.doi.org/10.1111/1468-2230.12060.
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Stone, Martin Jay. "Planning Positivism and Planning Natural Law." Canadian Journal of Law & Jurisprudence 25, no. 1 (January 2012): 219–35. http://dx.doi.org/10.1017/s0841820900005427.
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Scott Shapiro offers an elaboration and defense of “legal positivism,” in whichthe official acceptance of a planfigures as the central explanatory notion. Rich in both ambition and insight,Legalitycasts an edifying new light on the structure of positive law and its officialdom. As a defense of positivism, however, it exhibits the odd feature that its main claims will prove quite acceptable to the natural lawyer. Perhaps this betokens – what many have begun to suspect anyway – that our usual tests for classifying legal theories (as positivist or not) are, in the present state of discussion, no longer credible. In any case, my hope in the following remarks is to suggest how certain ambiguities inLegalitymight easily be resolved in favor of PlanningNatural Law. The Planning Theory of Law, in other words, is not proprietary to positivism.
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Dindjer, Hasan. "THE NEW LEGAL ANTI-POSITIVISM." Legal Theory 26, no. 3 (September 2020): 181–213. http://dx.doi.org/10.1017/s1352325220000208.
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AbstractAccording to a recent wave of work by legal anti-positivists, legal norms are a subset of moral norms. This striking “one-system” view of law has rapidly become the dominant form of anti-positivism, but its implications have so far been little tested. This article argues that the one-system view leads systematically to untenable conclusions about what legal rights and obligations we have. For many clear legal norms, the view lacks the resources to explain the existence of corresponding moral norms. And its criteria for distinguishing legal norms within morality imply an under- or over-inclusive set of legal norms. I stress the special difficulties that apply beyond obligations, in the case of privileges and powers, and I show that the view's problems do not only—or mainly—concern egregiously unjust law, or indeed morally defective law at all. I close with reflections on legal normativity and the prospects for different forms of anti-positivism.
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Perry, Stephen R. "Hart's Methodological Positivism." Legal Theory 4, no. 4 (December 1998): 427–67. http://dx.doi.org/10.1017/s1352325200001105.
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To understand H.L.A. Hart's general theory of law, it is helpful to distinguish between substantive and methodological legal positivism. Substantive legal positivism is the view that there is no necessary connection between morality and the content of law. Methodological legal positivism is the view that legal theory can and should offer a normatively neutral description of a particular social phenomenon, namely law. Methodological positivism holds, we might say, not that there is no necessary connection between morality and law, but rather that there is no connection, necessary or otherwise, between morality and legal theory. The respective claims of substantive and methodological positivism are, at least on the surface, logically independent. Hobbes and Bentham employed normative methodologies to defend versions of substantive positivism, and in modern times Michael Moore has developed what can be regarded as a variant of methodological positivism to defend a theory of natural law.
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SHINER, ROGER A. "The Morality of Legal Positivism*." Ratio Juris 7, no. 1 (March 1994): 41–43. http://dx.doi.org/10.1111/j.1467-9337.1994.tb00164.x.
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Dyzenhaus, D. "The Genealogy of Legal Positivism." Oxford Journal of Legal Studies 24, no. 1 (March 1, 2004): 39–67. http://dx.doi.org/10.1093/ojls/24.1.39.
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VILLA, VITTORIO. "Inclusive Legal Positivism, Legal Interpretation, and Value-Judgments." Ratio Juris 22, no. 1 (February 12, 2009): 110–27. http://dx.doi.org/10.1111/j.1467-9337.2008.00415.x.
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Priel, Dan. "Reconstructing Fuller’s Argument Against Legal Positivism." Canadian Journal of Law & Jurisprudence 26, no. 2 (July 2013): 399–413. http://dx.doi.org/10.1017/s0841820900006123.
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The purpose of this essay is to offer a reconstruction of Lon Fuller’s critique of Hart’s legal positivism. I show that contrary to the claims of Fuller’s many critics, one can derive from his work a clear and powerful argument against legal positivism, at least in the guise found in the work of H.L.A. Hart. The essence of the argument is that Fuller’s principles of legality posit that the same considerations that count for law’s excellence are relevant also for the determining what counts as law. I contrast this view with Hart’s legal positivism, which acknowledged that the principles of legality are relevant for law’s excellence, but considered them irrelevant for determining the question what counts as law. I argue that the positivist position is arbitrary, and - a point on which I focus - completely undefended. I draw from this point a more general challenge to Hart’s theory of law (as well as that of many of his followers), namely that though claimed to be a true theory of law, it has no resources to explain why this is so. I argue that Fuller’s theory does not suffer from this problem, because Fuller rejected a staple of contemporary jurisprudence - the separation of conceptual and normative jurisprudence.
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Somek, Alexander. "The Spirit of Legal Positivism." German Law Journal 12, no. 2 (February 1, 2011): 729–56. http://dx.doi.org/10.1017/s2071832200017077.
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Legal Positivism is dead, isn't it? We are all legal realists now. We believe, by default, that what really matters in law emerges from some judicial process. We sense that the point of norm-production by adjudication is to accomplish something useful or good for either individuals or society at large. Practice trumps theory and policy implementation overrides respect for some scholarly edifice. What we do when we do law is to unreel formula and rhetoric. We engage in these exercises with the aim to have judges rule in favor of our clients. Should we be judges ourselves, we promote causes we deem to be noble and fine. Law is a tool. Skillfully mastered legal knowledge is a prerequisite for using it well.
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Koval, Sofya V. "The History and Foundations of Criticism of H.L.A. Hart’s Legal Positivism in R. Dworkin’s Philosophy of Law." Russian Journal of Philosophical Sciences 62, no. 7 (October 10, 2019): 124–42. http://dx.doi.org/10.30727/0235-1188-2019-62-7-124-142.
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The paper discusses the Anglo-American philosophy of law of the 20th century, more specifically the philosophy of law of Ronald Myles Dworkin and his criticism of the legal positivism of Herbert Lionel Adolphus Hart. The author presents the history of the criticism of legal positivism in Ronald Dworkin’s philosophy of law and distinguishes historical stages. The subject of the study is the critique of legal positivism but not the Hart-Dworkin debate itself, well known in Western philosophy of law. The reason is that the discussion was conducted between Dworkin and Hart’s supporters but not between Dworkin and Hart by himself. The latter responded to the criticism only after twenty seven years. The article explains why Dworkin chose for his criticism Herbert Hart’s version of legal positivism. This is due to the fact that Dworkin highly appreciated Hart’s positivist theory of law and characterized it as the “most clear.” The article presents the methodological foundations of criticism of Hart’s legal positivism in Dworkin’s philosophy of law. It reveals a methodological divergence between the two legal theories, which directly affects the understanding of the concept of law and its content. Therefore, we can assume that the legal theories of Hart and Dworkin are two competing models of law: Dworkin’s model considers law as a set of rules and principles and Hart’s model acknowledges only rules and court decisions as a source of law. The article also presents the key principles of positivism criticized by Dworkin. These principles, firstly, interpret law as a set of legal rules determined through a special legal criterion, secondly, provide the judge with an opportunity to make a decision “at his own discretion” in a situation not regulated by law, and, thirdly, recognize only legal rights and obligations enshrined in legal regulations. It is important to note that in this article the author describes criticism as an independent phenomenon of legal philosophy with a particular focus on the history and foundations of this phenomenon.
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Ewing, Benjamin. "Conventionality, Disagreement, and Fidelity." Canadian Journal of Law & Jurisprudence 30, no. 1 (February 2017): 97–123. http://dx.doi.org/10.1017/cjlj.2017.5.
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Legal philosophers have taken what Ronald Dworkin called “theoretical disagreement” or disagreement about the “grounds of law,” to be of jurisprudential interest because of its putative incompatibility with legal positivism. The first aim of this article is to reframe theoretical disagreement as part of a broader challenge for all jurisprudential theories, positivist or not: how to refine and reconcile three theses that should appear plausible, important, and in tension. (1) Conventionality: the content of the law is determined, presumptively if not definitively, by meta-rules of law whose status as meta-rules arises from a consensus among relevant legal actors to treat them as having that status. (2) Disagreement: judges have theoretical disagreements about the law-i.e., disagreements about such meta-rules of law as legal interpretive methods, which they do not attempt to resolve merely by reference to explicit or implicit empirical consensus. (3) Fidelity: judges’ theoretical disagreements can be in good faith, reasonable, and legally resolvable. The article’s second ambition is to synthesize a broad range of jurisprudential writing pertinent to conventionality, theoretical disagreement, and judicial fidelity to law, in order to bring forward a potential reconciliation of all three that gives each one its due. Law and the requirements of judicial fidelity can be broadly conventional yet subject to reasonable, genuinely “theoretical disagreement” insofar as they are determined not only by contingent empirical truths about convergent practice but also by non-contingent conceptual truths about law’s nature and distinctive virtues. Unlike accounts of theoretical disagreement developed by theorists attacking or defending legal positivism, the view of theoretical disagreement I sketch here is ecumenical. It is compatible with accepting or rejecting legal positivism-though not on all positivists’ or all non-positivists’ terms.
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Brink, David O. "Legal Positivism and Natural Law Reconsidered, Again." Canadian Journal of Law & Jurisprudence 2, no. 2 (July 1989): 171–74. http://dx.doi.org/10.1017/s0841820900002836.
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In my article “Legal Positivism and Natural Law Reconsidered” I suggested that we might be able to effect an interesting reconciliation of legal positivism (LP) and natural law theory (NL) by distinguishing two possible LP-NL debates. In particular, I suggested that we should distinguish, within legal philosophy, between theories of legal validity – that is, accounts of the existence conditions for valid law and theories (as I now would put it) of legal interpretation – and theories of adjudication – that is, accounts of how judges should decide cases. We can use this distinction to formulate two possible LPNL debates, one involving legal validity (LP1-NL1) and one involving adjudication (LP2-NL2). NL1 asserts and LP1 denies that the existence conditions for valid law and the theory of legal interpretation ensure that legal standards satisfy true or sound political morality to some significant extent. NL2 asserts and LP2 denies that the content of the correct or justifiable judicial decision must satisfy true or sound political morality to some significant extent. I sketched my own view of the relevant details of the theories of legal validity and adjudication and argued that these claims seem to vindicate LP1 and NL2 and so to allow a kind of reconciliation of LP and NL.
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Patterson, Dennis. "Theoretical Disagreement, Legal Positivism, and Interpretation." Ratio Juris 31, no. 3 (September 2018): 260–75. http://dx.doi.org/10.1111/raju.12216.
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Smith, Dale. "Authority, Meaning and Inclusive Legal Positivism." Modern Law Review 64, no. 5 (September 2001): 795–808. http://dx.doi.org/10.1111/1468-2230.00352.
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GOLDSWORTHY, JEFFREY D. "The Self-Destruction of Legal Positivism." Oxford Journal of Legal Studies 10, no. 4 (1990): 449–86. http://dx.doi.org/10.1093/ojls/10.4.449.
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Kramer, M. H. "Dogmas and Distortions: Legal Positivism Defended." Oxford Journal of Legal Studies 21, no. 4 (December 1, 2001): 673–701. http://dx.doi.org/10.1093/ojls/21.4.673.
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FINNIS, J. M. "ON ‘POSITIVISM’ AND ‘LEGAL RATIONAL AUTHORITY’." Oxford Journal of Legal Studies 5, no. 1 (1985): 74–90. http://dx.doi.org/10.1093/ojls/5.1.74.
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Hunt, Alan, and Bernard S. Jackson. "Legal Positivism & Positivist Semiotics: Old Wine in New Bottles?" Journal of Law and Society 13, no. 2 (1986): 271. http://dx.doi.org/10.2307/1410289.
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Allan, James. "Positively Fabulous: Why It Is Good To Be a Legal Positivist." Canadian Journal of Law & Jurisprudence 10, no. 2 (July 1997): 231–48. http://dx.doi.org/10.1017/s0841820900001521.
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‘Legal Positivism’ is a much abused term. It is often pejoratively invoked by those occupying both the natural law and critical legal studies ramparts. The former see it as a school of thought which ignores the role in law of those standards and values which have not been deliberately laid down or unintentionally evolved. Positivism, for them, fails because it is prepared to describe a legal world where moral values play no necessary part and where transcendent values may not exist at all. The latter group of critics, not too dissimilarly, see legal positivism’s doctrines as over-reliant on rules and too inclined to accept that a legal system somehow can generate a logically mandated code of answers.In order to defend positivism it is advisable to start with an enunciation of its core precepts. With all that has been written attacking and supporting positivism though, this can be a contentious matter. So instead I shall defend one particular version of positivism, that of H.L.A. Hart. As Hart’s The Concept of Law, first published in 1961, is at worst one of the handful of great legal philosophy texts written in English this century and at best “the classic work of philosophical jurisprudence”, this preference for concentrating on the tangible and identifiable precepts of Hart over the woolly, elusive and frequently caricatured precepts of something disparagingly termed positivism has much to recommend it.
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Davies, Margaret. "Lesbian Separatism and Legal Positivism." Canadian journal of law and society 13, no. 1 (1998): 1–28. http://dx.doi.org/10.1017/s0829320100005561.
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AbstractLegal positivism and lesbian separatism provide very different, yet comparable, approaches to the issue of separation. Legal positivism practices separation as a tool of dominance, while lesbian separatism is based upon the need for identity formation and resistance to dominance. By elaborating upon the justifications advanced for lesbian separatism, this article critiques the separateness defended by legal positivists, and highlights the effects of power and context upon the significance of separation. Thus separatism as a political objective is not rejected or supported, except insofar as it consolidates oppressive practices. However, a critique of the idea that separation is necessarily territorial and pure is also developped, and an alternative vision of separation based upon the work of María Lugones is proposed. It is suggested that a non-oppressive concept of law can only maintain its identity if an alternative understanding of its separateness evolves.
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López Fuentes, José Luis. "El problema de la relación entre derecho y moral." Enfoques Jurídicos, no. 3 (February 25, 2021): 65–80. http://dx.doi.org/10.25009/ej.v0i3.2563.
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RESUMEN: En el presente trabajo, con base en las teorías iusnaturalistas y del positivismo jurídico, se busca ofrecer un breve acercamiento al desarrollo que han tenido a través del tiempo las tesis más importantes en torno al problema de la relación entre derecho y moral, hasta llegar a lo que actualmente es denominado antipositivismo jurídico, pues el objetivo de este documento es presentar un análisis y exposición de las aportaciones de esta corriente de pensamiento a la teoría jurídica contemporánea, para lo cual, se analizan las propuestas de Ronald Dworkin y Robert Alexy, en especial de la tesis de los principios, y su relevancia en la interpretación y aplicación de la ley.ABSTRACT: In this work, based on natural law theories and legal positivism, I seek to offer a brief approach to the development that the most important theses have had throughout time regarding the problem of the relationship between law and morality, arriving at what we now call legal anti-positivism, the objective of this document is to present an analysis and exposition of the contributions of this current of thought to contemporary legal theory, for which the proposals of Ronald Dworkin and Robert Alexy are analyzed, specially the thesis of the principles, and its relevance in the interpretation and application of the law.Keywords: Natural law theories, legal positivism, legal antipositivism, moral, thesis of principles.
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Yusriyadi, Yusriyadi. "DEVELOPMENT OF AN IDEAL MODEL BASED ON POSITIVISM AND ITS IMPLICATION TOWARDS LEGAL SCIENCE AND LAW ENFORCEMENT." Diponegoro Law Review 5, no. 2 (October 30, 2020): 231–44. http://dx.doi.org/10.14710/dilrev.5.2.2020.231-244.
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The development of legal science and law enforcement is one of the main issues in many countries. The focus of this writing is positivism and its implication towards legal science and law enforcement. Two problems are proposed in this writing there are the implication of positivism towards legal science and law enforcement and the development of legal science and law enforcement ideally. To analyze the problems, socio-legal concept and approach are applied. The analysis found that there is an implication of positivism towards legal science and law enforcement. The implication is more negative than positive. Legal science has turned into a practical science with scientific object limited to legal regulation (lege, lex), while law enforcement has turned into being formalistic and legalistic in nature, and no longer a search of justice and expediency. From the findings, it is concluded with a recommendation of an ideal model of legal science and enforcement, which is called integration/harmonization model. To achieve this ideal model, a change of mindset from mere formalistic-legalistic positivism into a new mindset of integration/harmonization of idealism, positivism, and sociological schools of thought is required..
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Giudice, Michael. "Unconstitutionality, Invalidity, and Charter Challenges." Canadian Journal of Law & Jurisprudence 15, no. 1 (January 2002): 69–83. http://dx.doi.org/10.1017/s0841820900002460.
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Inclusive legal positivism maintains that the existence and content of laws may, but need not, depend on standards of morality. As Wil Waluchow argues, inclusive positivism derives much of its plausibility through its explanation of Charter societies such as Canada. On his account, the fundamental rights of political morality contained in the Canadian Charter of Rights and Freedoms serve as ultimate criteria of the existence or validity of all laws in Canada, and thus form part of Canada’s rule of recognition. In this paper I challenge Waluchow’s inclusive positivist picture of Charter challenges. I argue instead that exclusive legal positivism, which maintains that resort to moral reasons may never figure in determinations of the existence or content of laws, better captures our ordinary understanding of the authoritative role of judges, constitutionality, and the traditional positivist conception of legal validity as a matter of social fact. Specifically, I argue that Joseph Raz’s notion of a directed law-making power, and not reliance on an inclusive positivist rule of recognition, best explains the duty of judicial review in Charter cases. Further, the fundamental rights of political morality recognized in the Charter are best understood as constitutional objectives, and not criteria of validity, which all subordinate laws in Canada ought to respect, yet may fail to do so in practice.
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Edgeworth, Brendan. "Legal positivism and the philosophy of language: a critique of H.L.A. Hart's ‘Descriptive Sociology’." Legal Studies 6, no. 2 (July 1986): 115–39. http://dx.doi.org/10.1111/j.1748-121x.1986.tb00539.x.
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Some years ago, a state-of-play review of the study of Law and Society in Britain by Colin Campbell and Paul Wiles contained the almost rueful comment that ‘analytical jurisprudence and legal positivism… have proved of intimidating endurance as archetypes. As another commentator, Peter Goodrich, has noted recently, Neil MacCormick, one leading authority in the field, rejoined that ‘to confirm or confute these accounts it is necessary to take up some position in analytical philosophy and the philosophy of language. Goodrich's review of linguistics and contemporary legal philosophy indicated that this gauntlet has not been systematically taken up either by legal philosophers or even by those sociologists of law who have been most critical of the general features of legal positivism and the substantive theories legal positivists have themselves proposed.
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Jong, Huib M. De, and Wouter G. Werner. "Continuity and Change in Legal Positivism." Law and Philosophy 17, no. 3 (May 1998): 233. http://dx.doi.org/10.2307/3504880.
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Beehler, Rodger. "Legal positivism, social rules, andRiggs v.Palmer." Law and Philosophy 9, no. 3 (August 1990): 285–93. http://dx.doi.org/10.1007/bf01406532.
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Smith, Dale. "MUST THE LAW BE CAPABLE OF POSSESSING AUTHORITY?" Legal Theory 18, no. 1 (January 25, 2012): 69–100. http://dx.doi.org/10.1017/s1352325211000267.
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Joseph Raz famously argues that given that the law necessarily claims authority and given the account of authority he provides, exclusive legal positivism is the only tenable theory of law. In this article, I contend that even if one accepts that the law necessarily claims authority and that Raz's account of authority is correct, it does not follow that exclusive legal positivism is the only tenable theory of law. This is because even if the law necessarily claims authority, it need not be capable of satisfying the requirements for possessing authority laid down by the correct account of authority. Thus, even if exclusive legal positivism is the only theory of law according to which the law can satisfy those requirements, this does not show that exclusive legal positivism is correct.