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1
Stankovic, Dejan. "Anti-metaphysical foundation of contemporary theory of natural law: Theory of law and practical rationality in works of John Mitchel Finnis." Theoria, Beograd 60, no. 1 (2017): 5–27. http://dx.doi.org/10.2298/theo1701005s.
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The contemporary natural law theory was grounded in the philosophical and the jurisprudential work of Australian legal and moral philosopher John Mitchell Finnis. He reaffirmed the natural law and also corrected some of false notions about it which were dominant through the history of legal philosophy. Finnis moral and legal philosophy could be understood by the specific theoretical figure - moral argument for law. This theoretical concept implies unity of two mutually connected moments which are necessary for a philosophical treatment of any socially relevant phenomena: methodological and epistemological as well as practical. The meeting point of these two philosophically relevant dimensions is theory of practical rationality exposed in the philosophy of John Mitchell Finnis. By grounding his concept of natural law on the theory of practical rationality, John Finnis historically contextualize it. He made some sort of specific anti metaphysical concept of natural law theory that is alternative to the classical natural law as well as to the legal positivism, which mainly exposed in the legal theories of Hans Kelsen and H.L.A Hart.
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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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Kovalev, Andrei Andreevich. "Conceptual pluralism in foreign philosophy and sociology of law: history and modernity." Философия и культура, no. 11 (November 2020): 27–43. http://dx.doi.org/10.7256/2454-0757.2020.11.33456.
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This article analyzes conceptual representations of the prominent foreign philosophers of law as a reality of social existence and a form of collective consciousness, which are traditionally attributed to philosophy and sociology of law. The goal of this research consists in the following: 1) assess the attitude of analytical jurisprudence towards theoretical integration of various aspects of law by analogy with the sociology of law; 2) follow the correlation between philosophical and sociological approaches towards interpretation of socio-legal meanings of modernity; 3) analyze the dependence of development of the philosophy of law, which was often searching for explanations in distinct underlying logic inherent to practice of law, on the sociology of law, which tends to comprehend law in relation to various aspects of organization of social life (including professional legal and administrative practice). The novelty of this of this work is defined by the following aspects. The article makes an attempt of comprehensive analyze of various approaches and theories, as well as assesses feasibility of examination of questions of social and legal nature in the context of sociology of law. Attention is given to the experience of Western law, which in the author’s opinion virtually implies national state law, i.e. what British philosopher, the founder of legal positivism John Austin, called independent political societies. The article reveals the question of critical potential of sociology of law, which criticized the assumption that nature of the social is not a problem for legal theory
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Choi, Naomi. "Interpretivism in Jurisprudence: What Difference Does the Philosophy of History Make to the Philosophy of Law?" Journal of the Philosophy of History 1, no. 3 (2007): 365–93. http://dx.doi.org/10.1163/187226307x229399.
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AbstractTo answer the question of what difference the philosophy of history makes to the philosophy of law this paper begins by calling attention to the way that Ronald Dworkin's interpretive theory of law is supposed to upend legal positivism. My analysis shows how divergent theories about what law and the basis of legal authority is are supported by divergent points of view about what concepts are, how they operate within social practices, and how we might best give account of such meanings. Such issues are widely debated in the philosophy of history but are often overlooked in jurisprudential circles. When the legal positivist approach to meanings is contrasted with Dworkin's interpretivism it is clear that what is needed is an alternative to both, in the form of what we might call "historical meanings" and "historical interpretation". While Dworkin's interpretivism gets it right that legal positivism is an inadequate philosophy of law to the extent that it is committed to a "criterial semantics" view of concepts, this paper argues that post-positivism in the philosophy of law need not entail a normative jurisprudence, as Dworkin would have it.
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Schauer, Frederick. "In Defense of Rule-Based Evidence Law–and Epistemology Too." Episteme 5, no. 3 (October 2008): 295–305. http://dx.doi.org/10.3366/e1742360008000403.
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ABSTRACTEver since Jeremy Bentham wrote his scathing critique of the law of evidence, both philosophers and legal scholars have criticized the exclusionary rules of evidence, arguing that formal rules excluding entire classes of evidence for alleged unreliability violate basic epistemological maxims mandating that all relevant evidence be considered. Although particular pieces of evidence might be excluded as unreliable, they argue, it is a mistake to make such judgments for entire categories, as opposed to making them only in the context of particular pieces of evidence offered for specific purposes. This paper challenges these claims, arguing that rule-based exclusions serve similar purposes to those served by rules in rule-consequentialist moral theories, and that, even more importantly, they are entirely consistent with the exclusionary nature of legal rules in general. Indeed, once we see the role that exclusionary rules might serve in legal epistemology, we can see that they might have a role to play in epistemic appraisal more generally.
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Syafiq, Ahmad. "REKONSTRUKSI PEMIDANAAN DALAM HUKUM PIDANA ISLAM (PERSPEKTIF FILSAFAT HUKUM)." Jurnal Pembaharuan Hukum 1, no. 2 (August 1, 2014): 178. http://dx.doi.org/10.26532/jph.v1i2.1484.
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Islamic Criminal Law is a living law in Indonesia, and that the Islamic Criminal Law be enacted or coloring in the criminal law in Indonesia, hence the need for a reconstruction against Islamic Criminal Law, especially in theories of punishment. Reconstruction of punishment in the Islamic Criminal Law in the perspective of legal philosophy can be done by doing the desecration (reinterpretation of the textual sources of law) Islamic Criminal Law and bring it in line with the flow of human history itself, rather than release it from the dimensions of space and time history of human civilization, to realize the goals of Islamic law is philosophically contained in maqasid al shariah ie benefit or blessing for the universe (rahmatan lil 'alamin).
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Amaya, Amalia. "Justification, Coherence, and Epistemic Responsibility in Legal Fact-Finding." Episteme 5, no. 3 (October 2008): 306–19. http://dx.doi.org/10.3366/e1742360008000415.
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ABSTRACTThis paper argues for a coherentist theory of the justification of evidentiary judgments in law, according to which a hypothesis about the events being litigated is justified if and only if it is such that an epistemically responsible fact-finder might have accepted it as justified by virtue of its coherence in like circumstances. It claims that this version of coherentism has the resources to address a main problem facing coherence theories of evidence and legal proof, namely, the problem of the coherence bias. The paper then develops an aretaic approach to the standards of epistemic responsibility which govern legal fact-finding. It concludes by exploring some implications of the proposed account of the justification of evidentiary judgments in law for the epistemology of legal proof.
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Baker, Brenda M. "Empire-Building." Dialogue 32, no. 1 (1993): 149–62. http://dx.doi.org/10.1017/s0012217300015055.
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Law's Empire is a bold and ambitious attempt to provide a philosophical framework which will serve to install the judicial perspective as the preferred perspective from which to think about theories of law. The heart of its argument is that judicial determination of what constitutes law is an exercise in constructive interpretation. Judges have the responsibility to seek that story of the law that both fits reasonably with its past political history and constitutes the best justification that can be given of the legal practices of the society as a whole. They are engaged in finding an account consistent with the history of the practice that displays the point, purpose(s) and values that the law serves to express and uphold, and so brings out most fully the law's claim to authority as a legitimate expression of governmental power in that society. Dworkin believes that the interpretation of law that best satisfies these conditions is law as integrity, which conceives of law as expressing a coherent set of principles embodying those substantive ideas of justice, fairness and procedural fairness that are respected in the community. Integrity tells judges to identify legal rights and duties as though they were all created by a single author, the community personified, as an embodiment of a coherent conception of justice and fairness to which the community subscribes. In this way, integrity requires judges to interpret the rules of law as having a principled justification in a network of values and moral principles that the society adopts.
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Tabolin, V. V. "Syncretism of the City: Legal Aspects of Various Scientific Theories of the City." Lex Russica, no. 8 (August 25, 2020): 9–20. http://dx.doi.org/10.17803/1729-5920.2020.165.8.009-020.
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Nearly a dozen and a half different humanities, natural and technical sciences have chosen the city as a subject of research and, within their subject areas, have developed theoretical approaches to defining the livesustaining activities of the city. All spheres of the city’s existence are interconnected, at least to some extent, by a complex system of city legal relationships and are combined into a single complex, dynamic, controversial, but rather stable structure. In other words, we can, by means of law, investigate the whole (syncretism) of various scientific approaches to the analysis and description of the system of life of the city and its inhabitants. The author investigates various approaches to the concept of syncretism, including the essence of syncretism in legal context. The concept of syncretism is applied to the city in order to present it as a legal framework linking the knowledge of the city of various humanities into the system of social relations in order to explore the main spheres of the population’s life. The paper investigates some basic provisions of the theories of the city of such humanities as history, sociology, philosophy, psychology, economics, urban studies and political science as a matter of law. The purpose of the study is to form a new, comprehensive legal approach to the understanding of the essence of urban life and urbanization processes within the framework of legal urbanology with due regard to the totality of theoretical and practical knowledge about cities accumulated in some humanities. This study implements an interdisciplinary approach based on the use of sources from different fields of scientific knowledge on the basis of general scientific and private scientific research methods (analysis, synthesis, deduction, hypothetical, statistical, comparative-legal, and prognostic methods). Analysis of legal aspects of the main approaches of some humanities to the study of the city shows their syncretic character and the possibility of forming a generalized legal theory of the city within the framework of legal urbanology as a branch in legal science on the basis of fundamental and applied interdisciplinary studies of the city.
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Antonov, Mikhail. "Review: Cercel, C.S. (2018). Towards a Jurisprudence of State Communism. Law and the Failure of Revolution. London: Routledge. 240 рp." Proceedings of the Institute of State and Law of the RAS 14, no. 1 (March 14, 2019): 199–214. http://dx.doi.org/10.35427/2073-4522-2019-14-1-antonov.
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The present essay is a review of the 2018 book by Professor Cosmin Cercel TowardsaJurisprudenceofStateCommunism.LawandtheFailureofRevolution. In reviewer’s opinion, this book is a good contrast to the books and articles written in the first post-Soviet years in the Central European countries, when the intellectuals glorified the Western ideals and condemned the socialist past of their countries and the ideological legacy of the communist regimes. The focal point of the book under review is to rethink the history of authoritarianism in Romania through analyzing the formalist legal ideology that was utilized by communist regimes for their purposes. In author’s opinion, the ideas of Soviet jurisprudence do not significantly differ from the bourgeois discourse about law that characterizes the modernity. In the perspective of this discourse, the formal and procedural autonomy of legal rules (the regime of legality) is opposed to the substantial exceptions from these rules which are justified with references to higher values. These latter underpin the legitimacy of the laws. There were different versions of postulation of such values in the Western and in the communist legal theories, but all these versions are equally based on the same dualist paradigm of legal thinking.The author contextualizes this analysis of the legal philosophy of the interwar period within theoretical attempts to understand law through its connection with the state represented a kind of psychological defense of the classical jurisprudence against the revolutionary changes of the first decades of the XX century. These attempts are considered by the author as a function of psychoanalytical replacement and ousting of the historical facts from legal mentality, as far as these facts undermined the legal rationality and demonstrated the triumph of political violence over legal order. This semantic background was important for legal and political changes in the postwar Romania after 1945 — the wide discretional powers of the regime were justified with reference to the principle of exception which allows avoidance of rules in the name of people, country or state. This theoretical construction was largely utilized by the authoritarian regime which did not invent anything new but just followed the theoretical paths protracted in the interwar legal philosophy and theory.
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Kolosov, Igor V., and Konstantin E. Sigalov. "WAS J. BENTHAM THE FIRST LEGAL UTILITARIAN?" RUDN Journal of Law 24, no. 2 (December 15, 2020): 438–71. http://dx.doi.org/10.22363/2313-2337-2020-24-2-438-471.
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Legal utilitarianism is attractive for practice because this field of legal thought and philosophy of law sets out a particular direction of legal policy and statutory regulation (focus on the utility principle in decision-making) that can, under certain reservations, be used to improve people's lives. Most scholars conclude that the first utilitarian was J. Bentham. However, scientific studies prevalently do not involve the analysis of earlier legal doctrines in relation to the use of utility principle. Thus, the relevance and scientific novelty of analysis of the origin of legal utilitarianism is associated with the need to develop a theoretical component of this doctrine that is of current interest for the legal policy and to enlarge the underdeveloped - in our opinion - theoretical framework of legal utilitarianism genesis. The purpose is to identify the first theory in the history of legal thought, which can be classified as legal utilitarianism, and, if such theory is the J. Bentham's utilitarianism, to determine the reasons why earlier theories based on the utility principle cannot be classified as legal utilitarianism. The theoretical basis of the article is materials such as original sources by various thinkers whose works are based on the utility principle and scientific papers of European and the US researchers. For the purpose of the article, the following methodological tools were used: metaphysical (dialectic method), general (analysis and synthesis, deduction and induction, analogy, comparison) and specific (historical and legal-historical) scientific methods. The main outcome of the research is identification of distinct features of pre-Bentham legal thought based on the utility principle and identification of pre-requisites and basis (provisions which had formed the basis) for J. Bentham's utilitarianism, as well as the answer to the question: Was J. Bentham the first legal utilitarian?.
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Silk, Alex. "THEORIES OF VAGUENESS AND THEORIES OF LAW." Legal Theory 25, no. 2 (April 23, 2019): 132–52. http://dx.doi.org/10.1017/s1352325219000028.
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ABSTRACTIt is common to think that what theory of linguistic vagueness is correct has implications for debates in philosophy of law. I disagree. I argue that the implications of particular theories of vagueness on substantive issues of legal theory and practice are less far-reaching than often thought. I focus on four putative implications discussed in the literature concerning (i) the value of vagueness in the law, (ii) the possibility and value of legal indeterminacy, (iii) the possibility of the rule of law, and (iv) strong discretion. I conclude with some methodological remarks. Delineating questions about conventional meaning, legal content determination, and norms of legal interpretation and judicial practice can motivate clearer answers and a more refined understanding of the space of overall theories of vagueness, interpretation, and law.
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Stankovic, Dejan. "Law and morality in contemporary philosophy of law." Filozofija i drustvo, no. 19-20 (2002): 203–12. http://dx.doi.org/10.2298/fid0209203s.
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In this paper, author tries to analyze complex character of the relation between law and morality in contemporary law philosophy. There are three approaches to the issue of relation between law and morality: natural law theory (identity thesis), positivist (separation thesis) and Anglo-American analytical jurisprudence (polarity thesis). The identity thesis-law and morality are basically identical, although basic principles of morality are subordinated to the positive legal rules; the separation thesis-law and morality are quite different system of norms: positive legal rules are completely deprived of any moral content; Polarity thesis - law and morality are different systems of norms which complement to each other. The polarity thesis is exemplified in theories of Herbert Hart and Ronald Dworkin's. At the logical level, polarity thesis overcomes and specifically synthesizes abstract character and reductionism of identity and separation thesis. At the socio-historical level, the polarity thesis is result of historical development of legal and political institutions.
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Leiter, Brian. "LEGAL FORMALISM AND LEGAL REALISM: WHAT IS THE ISSUE?" Legal Theory 16, no. 2 (June 2010): 111–33. http://dx.doi.org/10.1017/s1352325210000121.
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In teaching jurisprudence, I typically distinguish between two different families of theories of adjudication—theories of how judges do or should decide cases. “Formalist” theories claim that (1) the law is “rationally” determinate, that is, the class of legitimate legal reasons available for a judge to offer in support of his or her decision justifies one and only one outcome either in all cases or in some significant and contested range of cases (e.g., cases that reach the stage of appellate review); and (2) adjudication is thus “autonomous” from other kinds of reasoning, that is, the judge can reach the required decision without recourse to nonlegal normative considerations of morality or political philosophy. I also note that “formalism” is sometimes associated with the idea that judicial decision-making involves nothing more than mechanical deduction on the model of the syllogism—Beccaria, for example, expresses such a view. I call the latter “Vulgar Formalism” to emphasize that it is not a view to which anyone today cares to subscribe.
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Vermeulen, Ben. "Discussing Grotian Law and Legal Philosophy." Grotiana 6, no. 1 (1985): 84–92. http://dx.doi.org/10.1163/016738312x13397477911467.
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Bongiovanni, Giorgio, Giovanni Sartor, and Chiara Valentini. "Philosophy of Law and International Criminal Law: Between Peace and Morality." International Criminal Law Review 14, no. 4-5 (July 31, 2014): 738–67. http://dx.doi.org/10.1163/15718123-01405002.
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The legal philosophy of the 20th century has contributed to the development of international criminal law by rethinking fundamental legal concepts and theories concerning the nature of international law, its relation with national laws, the connection between the law and the State, and the very idea of responsibility. This was achieved, in the first place, through the reflection of Hans Kelsen, who put forward the idea of a system of enforceable criminal norms at the international level, directed at individuals and having a positive legal foundation. In the years immediately following the Second World War, a number of legal theorists and, in particular, Gustav Radbruch, argued in favour of a necessary connection between law and morality, on whose basis it could be claimed that the worst atrocities were punishable even when allowed by state norms, and even in the absence of positive international norms. In the last decade, the practice of international criminal law, through ad hoc tribunals and the International Criminal Court, has stimulated theoretical reflections on a variety of further fundamental issues, like impartiality, judicial truth, justification of punishment, side-effects of prosecution and transitional justice.
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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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McLaughlin, Robert N. "On a Similarity Between Natural Law Theories and English Legal Positivism." Philosophical Quarterly 39, no. 157 (October 1989): 445. http://dx.doi.org/10.2307/2219829.
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Khaliq, Urfan. "Coping with Modernity? Literature and Islamic Legal Theories." Journal of Legal History 20, no. 3 (December 1999): 115–34. http://dx.doi.org/10.1080/01440362008539600.
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Antonov, Mikhail. "History of Russian Law and Its Interpretations." Review of Central and East European Law 45, no. 1 (March 13, 2020): 161–80. http://dx.doi.org/10.1163/15730352-04501006.
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This essay examines methodological nuances connected with historical research of Russian law. These nuances are studied against the backdrop of two books published respectively by Professor Ferdinand Feldbrugge and Professor William Pomeranz on Russian legal history. The methods employed by these authors reveal specific features of Russian legal language and mentality which can be helpful in explaining the dissimilarities between legal and political developments in Russia and the West. They place particular emphasis on the development of legal language and productively analyze many current issues of Russian law through the lens of history of concepts. These books are evaluated as important contributions to comparative analysis of Russian and Western legal cultures. The key events of Russian legal history are considered in a perspective that sheds light on the current challenges faced by Russian law.
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Raz, Joseph. "Two Views of the Nature of the Theory of Law: A Partial Comparison." Legal Theory 4, no. 3 (September 1998): 249–82. http://dx.doi.org/10.1017/s1352325200001026.
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In Law's Empire Prof. Ronald Dworkin has advanced a new theory of law, complex and intriguing. He calls it law as integrity. But in some ways the more radical and surprising claim he makes is that not only were previous legal philosophers mistaken about the nature of law, they were also mistaken about the nature of the philosophy of law or jurisprudence. Perhaps it is possible to summarize his main contentions on the nature of jurisprudence in three theses: First, jurisprudence is interpretive: “General theories of law… aim to interpret the main point and structure of legal practice” (LE, 90). Second, legal philosophy cannot be a semantic account of the word “law.” Legal philosophers “cannot produce useful semantic theories of law” (id.). Third, legal philosophy or jurisprudence “is the general part of adjudication, silent prologue to any decision at law” (id.).
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Endicott, Timothy A. O. "Vagueness and Legal Theory." Legal Theory 3, no. 1 (March 1997): 37–63. http://dx.doi.org/10.1017/s135232520000063x.
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The use of vague language in law has important implications for legal theory. Legal philosophers have occasionally grappled with those implications, but they have not come to grips with the characteristic phenomenon of vagueness: the sorites paradox. I discuss the paradox, and claim that it poses problems for some legal theorists (David Lyons, Hans Kelsen, and, especially, Ronald Dworkin). I propose that a good account of vagueness will have three consequences for legal theory: (i) Theories that deny that vagueness in formulations of the law leads to discretion in adjudication (including Dworkin's) cannot accommodate “higher-order” vagueness, (ii) A legal theory should accept that the law is partly indeterminate when it can be stated in vague language, (iii) However, the traditional formulation of the indeterminacy claim, that a vague statement is “neither true nor false” in a borderline case, is misconceived and should be abandoned.
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Alexy, Robert. "Kant’s Non-Positivistic Concept of Law." Kantian Review 24, no. 4 (November 26, 2019): 497–512. http://dx.doi.org/10.1017/s1369415419000281.
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AbstractThe main thesis of this article is that Kant’s concept of law is a non-positivistic one, notwithstanding the fact that his legal philosophy includes very strong positivistic elements. My argument takes as its point of departure the distinction of three elements, around which the debate between positivism and non-positivism turns: first, authoritative issuance, second, social efficacy, and, third, moral correctness. All positivistic theories are confined to the first two elements. As soon as a necessary connection between these first two elements and the third element, moral correctness, is established, the picture changes fundamentally. Positivism becomes non-positivism. There exist two kinds of connections between law and morality: classifying and qualifying connections. This distinction stems from different sorts of effects that moral defects give rise to. A classifying connection leads to the loss of legal validity, whereas a qualifying connection leads only to legal defectiveness. In Kant’s theory of law both connections are found. The qualifying connection is conspicuous throughout Kant’s theory of law, whereas the classifying connection, by contrast, is rare and well hidden. This will suffice to consider Kant as a representative of inclusive non-positivism.
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Kim, Jabonn. ""Principles v. Rules : Theories of Legal Philosophy about The Form of Law"." Korea Financial Law Association 15, no. 2 (August 31, 2018): 157–83. http://dx.doi.org/10.15692/kjfl.15.4.5.
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Savenkov, A. "Philosophy of Law and Legal Thinking: History and Modernity." Voprosy filosofii, no. 8 (August 2019): 38–48. http://dx.doi.org/10.31857/s004287440006031-9.
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Frydrych, David. "HOHFELD VS. THE LEGAL REALISTS." Legal Theory 24, no. 4 (December 2018): 291–344. http://dx.doi.org/10.1017/s1352325218000150.
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ABSTRACT2018 marked the centenary of Wesley Hohfeld's untimely passing. Curiously, in recent years quite a few legal historians and philosophers have identified him as a Legal Realist. This article argues that Hohfeld was no such thing, that his work need not be understood in such lights either, and that he in fact made a smaller contribution to jurisprudence than is generally believed. He has nothing to do with theories of official decision-making that identify, among other things, “extra-legal” factors as the real drivers of judicial decision-making, nor must his schema of jural relations advance a “Realist” political agenda. Distinguishing Hohfeld from the Realists will help to correct some misunderstandings about his work and point to its utility in many more contexts than a Realist reading of it allows.
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Levystone, David Xavier. "What Rules and Laws does Socrates Obey?" Tópicos, Revista de Filosofía, no. 57 (June 29, 2019): 399–432. http://dx.doi.org/10.21555/top.v0i57.1024.
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Socrates´ thought of justice and obedience to laws is motivated by a will to avoid the destructive effects of Sophistic criticisms and theories of laws. He thus requires–against theories of natural law–an almost absolute obedience to the law, as far as this law respects the legal system of the city. But, against legal positivism, Socrates would not admit that a law is just simply because it is a law: he is looking for the true Just. However, as often in Socratic philosophy, Socrates cannot accept that two equally justified and legitimate rights or moral values conflict.
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von Hirsch, Andrew. "Proportionality in the Philosophy of Punishment: From “Why Punish?” to “How Much?”." Israel Law Review 25, no. 3-4 (1991): 549–80. http://dx.doi.org/10.1017/s002122370001061x.
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Recent philosophical writing about punishment has been devoted mainly to the “why punish?” question. While a variety of theories — utilitarian, reciprocity based, and expressive — have been put forward to answer this question, there has been wide agreement among philosophers that the institution of legal punishment should be retained. Proponents of the various theories disagree chiefly why institutionalized punishment is necessary.The philosophical writings have paid comparatively little attention to the criteria for distributing punishments — particularly to the criteria for deciding how much to penalize convicted offenders.
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Xifaras, Mikhail. "TheGlobal Turnin Legal Theory." Canadian Journal of Law & Jurisprudence 29, no. 1 (February 2016): 215–43. http://dx.doi.org/10.1017/cjlj.2016.8.
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Familiar legal theories are epistemologically and politically stato-centric theories; they aim to rationalize intra- and inter-national legal systems. If this Westphalian approach were to be abandoned, then its replacement might be called Global Law, which invites theorizing that is not stato-centric. When that change happens, one would talk about aGlobal Turnin legal theory. Describing this turn is the aim of the paper.This description is articulated around two ideas about the history and geography of the globalizing of Law, and three intuitions about the fate of legal theory itself once thisGlobal Turnis taken. Namely, how theorizing Law from this perspective leads to focus on what is emerging and circulating, how the aesthetics of legal thinking shifts towards perspectivism and dissociation, and how more pluralistic, eclectic and pragmatic modes of reasoning and arguing about Law become dominant. What follows is neither a substantial or positivistic analysis, nor a prediction or a wish, but an attempt to point out tendencies which might be essential features of contemporary legal thinking.
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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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Frankenberg, Günter. "Remarks on the philosophy and politics of public law." Legal Studies 18, no. 2 (June 1998): 177–87. http://dx.doi.org/10.1111/j.1748-121x.1998.tb00011.x.
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To this very day, public law scholars seem to be concerned about the identity of their area of scientific interest. Many of them in many European legal cultures routinely labour, some even agonise over distinguishing public law from what appears to be a securely established field of private law. More than 20 years ago, 20 to 30 variations of the public/private-theme, usually elevated to the rank of ‘theories’, could be counted in German scholarship alone, none of them satisfying the desire to clarify, once and for all, the nature, purpose, and scope of public law.In this vein, law students are required to discuss at least the major demarcation theories so as, for instance, to establish jurisdiction of administrative courts, liability of the state, or the scope of constitutional rights.
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Réaume, Denise G. "What's Distinctive about Feminist Analysis of Law?: A Conceptual Analysis of Women's Exclusion from Law." Legal Theory 2, no. 4 (December 1996): 265–99. http://dx.doi.org/10.1017/s1352325200000549.
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What is distinctive about a feminist analysis of law? Conversely, what does it mean to characterize the law (or a law) as distinctively “male” as a way of criticizing its injustice? It is widely assumed by both feminist scholars and nonfeminists or curious onlookers that a feminist analysis of law must have distinctive features that set it off from mainstream/“malestream” theories of law. Feminist scholars often try to “sell” feminist analysis to interested newcomers and try to break down the recalcitrance of those who seem to want to marginalize and dismiss it precisely by claiming a difference of perspective for feminist analysis of which no well-educated lawyer or legal commentator can afford to be ignorant. Meanwhile, feminist claims are also challenged by those who think they can reach the same conclusion on independent grounds for therefore not being distinctively feminist; “What makes that particularly feminist?” the communitarian, for example, will ask, faced with an argument that feminism is critical of the individualistic bias of the legal system.
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Sulistyarini, Rachmi, A. Rachmad Budiono, Bambang Winarno, and Imam Koeswahyono. "The Contact Point of Customary Law and Islamic Law (Legal History Perspective)." International Journal of Social Sciences and Management 5, no. 2 (April 23, 2018): 51–59. http://dx.doi.org/10.3126/ijssm.v5i2.19672.
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The period before various legal traditions encounter to Indonesia, the people living in these islands has owned rules that contain the value of values as the original law. The term of original law is also known as the name of "chthonic" law, and is used as the customary law of the community of Indonesia, or the archipelago known at that time. The customary law tradition is very different from other legal traditions; this system has a special character that is very different from the character of other legal traditions. Furthermore, around the seventh century of AD, the influence of religion encounter as well; the first is Hinduism, then the religion of Islam brought by traders from Arabia and India. The term known as custom, with its unwritten form and religious element as the definition proposed by Soepomo (1996), is indeed identical with the term given by experts in the colonial period such as: “Godsdientige Wetten, Volks instelingen En Gebruiken" (Regulation of Religious Ordinance, People's Institution and Customs), "Godsdientige Wetten, Instelingen En Gebruiken (Religious Regulations, Institutions, and Customs), Met Hunne Godsdiensten en Gewoonten Samenhangen de Rechts Regelen" (Rules of law relating to Religion and religion customs habits), in addition there are also called the Islamic Law or Mohameden Law. It shows that at that time Customary Law is equalized as religious law. The point of contact between the two can also be identified from the theories that develop at that time as in the theory of Receptio in Complexu (Salmon Keyzer and van Den Berg); Receptie Theory (Scouck Hurgronye); Theory of Receptio a Contrario (Ha zairin). The relationship between customary law and Islamic law is widely found in the field of family law that is the issue of marriage law and inheritance law. After Independence, legislation products related to Islamic law include Law no 1 of 1974, Law no 50 of 2009, Law no 21 of 2008 regarding Islamic Banking.Int. J. Soc. Sc. Manage. Vol. 5, Issue-2: 51-59
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Gruzdev, Vladimir Sergeevich. "Legal Realism in Chicherin’s Philosophy of Law." Общество политика экономика право, no. 10 (October 23, 2020): 68–71. http://dx.doi.org/10.24158/pep.2020.10.10.
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The paper considers the problem of determining the origins of legal realism by the example of the views of the outstanding representative of the Russian philosophy of law B.N. Chicherin as a generalized characteristic of the methods of legal knowledge and legal understanding that are widely used in modern legal thought. Taking into account the varie-ty of meanings and interpretations of the realism of law, the study demonstrates, first, the problem of articulating the central meaning of the principle of realism in the philosophy of law of the XIX century, which is fixed in Russian legal thought, secondly, the author substantiates the thesis that the name “legal realism” is not unambiguous and implies a variety of options for its conceptual design. Analyz-ing Chicherin’s legal views, the paper argues that legal realism in the modern history of political and legal thought is not seen only as the installation of the legal version of the philosophy of pragmatism, with its focus on making meaning based on social facts, but as a direction, articulated the recognition of the reality of law as a spiritual phenomenon.
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Rosen, Arie. "Law as an Interactive Kind: On the Concept and the Nature of Law." Canadian Journal of Law & Jurisprudence 31, no. 1 (February 2018): 125–49. http://dx.doi.org/10.1017/cjlj.2018.6.
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When exploring the relations between the concept and the nature of law, ample philosophical reflection has been dedicated to the relations between the intension of terms (or the content of concepts) and their extension. Much less consideration has been given to the causal relations between concept and thing within socially constructed entities. This paper examines the interactive causal relationship between law and the concept we have of it and reflects on its implications for legal philosophy. First, it explains the causal role played by concepts in processes of social construction and applies this explanation to the analysis of the special case of law. Second, it compares this causal role played by the concept of law to the role assigned to it in the context of externalist theories of meaning and mental content. Lastly, it demonstrates the advantages of seeing law as an interactive kind in answering some contemporary methodological difficulties stemming from conceptual plurality or uncertainty, and in opening new avenues for research in legal philosophy.
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Doak, Kevin. "Beyond International Law: The Theories of World Law in Tanaka Kōtarō and Tsunetō Kyō." Journal of the History of International Law / Revue d'histoire du droit international 13, no. 1 (2011): 209–34. http://dx.doi.org/10.1163/157180511x552090.
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AbstractA remarkably prescient debate broke out among Japanese legal scholars in the 1930s over the possibility of moving beyond international law as the dominant jurisprudence for a world that had already become quite integrated. At the very time when some were turning away from the ideal of world order to more parochial claims of national or regional autonomy, Tanaka Kōtarō (1890–1974) and Tsunetō Kyō (1888–1967), two of twentieth-century Japan's leading legal scholars, offered the jurisprudence of world law (sekai hō) as a substitute for what they believed was an outmoded concept of international law (kokusai hō). Tanaka sparked the debate with his prize-winning 1932 study A Theory of World Law, and Tsunetō joined it with his 1936 essay, “The Essence of World Law and its Social Function.” The debate has continued throughout the twentieth century in various forms. More broadly, the jurisprudence of world law introduced by Tanaka and Tsunetō underlies Jacques Maritain's influential Man and the State (1951) and – through Maritain – Pope Benedict XVI's recent call for a “true world political authority.” Below, I critically engage this theory of world law, focusing on the difference between Tanaka's transcendental approach and Tsunetō's social deterministic approach, and offer some reflections on how world law might provide a useful way to think beyond the customary binaries of nationalism/internationalism and society/nature that still encumber so much thinking about law and social order today.
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Gilliot, Claude, and Wael B. Hallaq. "A History of Islamic Legal Theories." Studia Islamica, no. 93 (2001): 165. http://dx.doi.org/10.2307/1596119.
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Eldridge, Lorren. "Gone and forgotten: Vinogradoff's historical jurisprudence." Legal Studies 41, no. 2 (January 21, 2021): 194–213. http://dx.doi.org/10.1017/lst.2020.41.
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AbstractSir Paul Vinogradoff was once well known for his historically contextualised approach to legal theory which held that legal ideas were the contingent products of social factors. Law was necessarily engaged with other subjects, and ‘historical jurisprudence’ could produce real insight into the nature of law – in part by placing theories such as analytical jurisprudence in context, evaluating and modifying theoretical models by reference to the contingent social facts of an era. This was part of the nineteenth-century turn to ‘science’ in history and a focus on methodology. Sir Henry Maine argued that legal history proved the insufficiency of analytic theories, but his method met with many criticisms, some of which Vinogradoff sought to address. However, Vinogradoff's insights have rarely been pursued or developed, with legal history favouring Maitland's more doctrinal approach, and legal theory rejecting historical jurisprudence – at least explicitly. Despite its imperfections, historical jurisprudence offers a rich and valuable way to understand law, including to evaluate analytical models such of those of HLA Hart, and as a methodology for dialogue between comparative and historical legal scholarship. It has, in fact, continued to do so without explicit recognition in the 100 years since Vinogradoff's death.
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Kahn, Jeffrey. "Law and Legal System of the Russian Federation." Review of Central and East European Law 33, no. 2 (2008): 239–47. http://dx.doi.org/10.1163/092598808x262623.
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Hinghofer-Szalkay, Stephan G. "Empirical Legal Studies, Comparative Constitutional Law and Legal Doctrine: Bridging the Gaps." Review of Central and East European Law 43, no. 4 (November 17, 2018): 383–410. http://dx.doi.org/10.1163/15730352-04304002.
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This article looks into the viability of approaches to engaging in empirical comparative constitutional legal analysis. Quantifying the words contained in constitutions, while by no means irrelevant, can only be an element in this. Their actual importance according to case law and other empirical data highlights the need for caution in drawing far-ranging comparative conclusions from such quantifications for constitutional legal systems. It is argued that the key phenomenon driving these systems can be found elsewhere: In the paradigmatic concepts of a particular system of legal scholarship, other epistemic communities, or society at large. However, while this phenomenon can be empirically studied, any meaningful study necessitates intimate knowledge of legal scholarship as the meaning of communicative symbols involved can strongly diverge from the paradigmatic concepts of (other) social sciences. Central and East European (cee) constitutional legal systems can be of special interest in this regard due to both close similarities and considerable variations of both positive law and the paradigms of legal scholarship and political thought. Ultimately, an empirical analysis requires a holistic and systematic approach to understanding constitutional systems, including positive law and the paradigms driving it analyzed with quantitative as well as qualitative tools. Otherwise, the push for empirical comparative constitutional legal research may thwart its goal of accurately depicting the observable world, and, in the case of quantitative analyses, can run counter to the goal pursued.
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Rosenberg, Norman. "Hollywood on Trials: Courts and Films, 1930–1960." Law and History Review 12, no. 2 (1994): 341–67. http://dx.doi.org/10.2307/743746.
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As long as legal scholarship focused on traditional sources that were considered“distinctively legal,” a great variety of “legal texts” were consigned to scholars in other disciplines. Thus, Oliver Wendell Holmes, Jr. (1841–1932) and his classic workThe Common Law(1881) appeared safely inside the categorical “box” identified as distinctively legal, while Louis Calhern's portrayal of Holmes and the filmThe Magnificent Yankee(MGM, 1950) fell outside.In recent years, however, both the inside/outside distinction and the legal box metaphor have become increasingly suspect. Drawing upon post-structuralist theories, which highlight the discursive and representational dimensions of law, a variety of different projects seek to locate the diverse places at which legal rhetoric and imagery are constituted.
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Meshcheryakova, Olga Mikhaylovna. "Philosophy of Law in the System of Philosophy and Jurisprudence." Russian Journal of Legal Studies 6, no. 2 (June 15, 2019): 22–27. http://dx.doi.org/10.17816/rjls18473.
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The article seeks to substantiate the philosophical and legal approach to the law. The article deals with the problems of jurisprudence from the standpoint of the philosophy of law. The author considers historical-methods aspects of development of philosophy of law as the most important moment of formation of the European liberalism conditioned by the genesis thereof.The aim of the article is to describe the inf luence of the philosophy of law on the formation and development of a legal worldview.In the present article author researches questions of philosophy of law impact on the law. Among the philosophical and jurisprudential schools and disciplines, which significantly affected the establishment and transformation of legal philosophy the decisive role belonged to the entire philosophical system of Georg Wilhelm Friedrich Hegel, including philosophy of law, history, religion, and logic. The question of what was the impact of philosophical system of Georg Wilhelm Friedrich Hegel for the formation of teaching on law is considered in the article.That is why, “Philosophy of Law” by Georg Wilhelm Friedrich Hegel is of high value in the history of political and legal though, and Georg Wilhelm Friedrich Hegel should take a worthy place among the patriarchs of the philosophy of law.These problems identified the subject of the study conducted in the article. The identification of certain features of succession with regard to Hegelian philosophy allowed us to indicate ways of enriching jurisprudence with the philosophy of law.The methodological basis of the research is a set of methods of scientific knowledge, among which the main place is occupied by the methods of historicism, comparative-legal, as well as formal-legal and systemic approach.Its provisions can be used in further studies on issues of philosophy of law and jurisprudence.
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Zirk-Sadowski, Marek. "Jerzy Wróblewski’s Legal Theory and His Influence on Humanist Legal Thought." Review of Central and East European Law 45, no. 2-3 (June 23, 2020): 200–216. http://dx.doi.org/10.1163/15730352-bja10004.
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This paper presents Jerzy Wróblewski’s (1926–1990) theory of law. He was an eminent Polish legal philosopher. His philosophical minimalism, anticognitivism, relativism and moderate reconstructivism constitute the basis for analytical theory of law in Poland. He was developing his theory of law over the span of several dozens of years but the assumptions were formulated already in his first work on legal interpretation published in 1959. His paradigm of legal theory includes several areas: the theory of the legal norm, theory of legal interpretation, theory of the legal system, theory of application of law, theory of law-making and the methodology of legal sciences.
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Sun, Lin, and Dexiang Gong. "An Overview of History of Contract Law Translation in China." Theory and Practice in Language Studies 11, no. 9 (September 1, 2021): 1093–100. http://dx.doi.org/10.17507/tpls.1109.16.
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Legal translation enjoys significance in both empirical and theoretical aspects, while the historical perspective can help the academia and translators to know the past of certain specific field of laws so as to produce better translation versions. Based on commonly accepted translations theories, this article explores the historical importance of contract law in perspective, analyzes the process of development, exhibits the translation achievements and experiences from major translators and agencies, thus, some paradigm and future advices can be drawn therefrom. Employing a theoretical method in a history angle is not that frequently used in translation practice, however it is also not that rare, it can be a start for not only contract law per se, but the whole legal translation in balance.
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Раянов, Фанис, and Фарит Галиев. "THE IDEA OF FREEDOM IN THE SOVEREIGN PHILOSOPHY OF LAW REVIEW OF THE MONOGRAPH: “THE IDEA OF FREEDOM. LAW. MORALITY (CLASSICAL AND POST-CLASSICAL PHILOSOPHY OF LAW)”." Rule-of-law state: theory and practice 16, no. 1 (January 1, 2020): 168–78. http://dx.doi.org/10.33184/pravgos-2020.1.19.
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The authors review the monograph “The Idea of Freedom.Law. Morality (classical and post-classical philosophy of law)”, published in 2020 by Yurlitinform Publishing House (Moscow). The relevance and novelty of the study, the wide coverage of theoretically important problems in the history of legal doctrines, the systematic nature of the study of the most important categories of classical legal theory are shown.
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Basta, Danilo. "Kant's metaphysics of law." Glasnik Advokatske komore Vojvodine 76, no. 9 (2004): 426–36. http://dx.doi.org/10.5937/gakv0411426b.
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The history of reception and the history of interpretation of Kant's legal deliberation are not the same even after two centuries. This was not only due to the recipients and interpreters of Kant's thoughts but also and above all due to Kant, i.e., the content and the spirit of his philosophy. The law of the state, the international law, and the cosmopolitan law are the ways to approach the eternal peace, which was considered by Kant as the final goal of the entire international law. The existence of the State is based on the idea of the Initial Agreement. According to Kant, in the Initial agreement all the individuals abandoned their external freedom in order to attain the freedom in a legal order as members of the political union. Kant did not always succeed to stay on the level of his own legal and political principles, and hence the light of his philosophy is sometimes covered with the dark shadows.
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McManus, Matthew. "Linguistic Meaning, Rigid Designators, and Legal Philosophy." Philosophies 4, no. 2 (April 3, 2019): 15. http://dx.doi.org/10.3390/philosophies4020015.
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This essay is intended to engage some of the controversies that have emerged in legal philosophy concerning the theory of linguistic meaning we should adopt with reference to the law. In particular, I will focus on two theories of linguistic meaning that have opposing positions both on the nature of meaning, and the consequences this might have for law and legal objectivity. The first can be called plain meaning view. The plain meaning theory claims that the meaning of legal terms is a settled thing, and it is the duty of legal officials, especially judges, to simply apply that meaning to a given case in hand. In modern American jurisprudence, the plain meaning theory is often associated with various originalist figures, most notably the late Antonin Scalia who called his iteration of the plain meaning theory “textualism.” For this reason, I will largely be focusing on Justice Scalia’s account. The second theory of linguistic meaning I will be examining can be called the indeterminate theory. The indeterminate theory holds that there is no set or foundational meaning to any semantic term in the law which can be objectively applied by legal practitioners.
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Biagioli, Mario, and Marius Buning. "“Technologies of the law/ law as a technology”." History of Science 57, no. 1 (December 21, 2018): 3–17. http://dx.doi.org/10.1177/0073275318816163.
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Historians of science and technology and STS practitioners have always taken intellectual property very seriously but, with some notable exceptions, they have typically refrained from looking “into” it. There is mounting evidence, however, that they can open up the black box of IP as effectively as they have done for the technosciences, enriching their discipline while making significant contributions to legal studies. One approach is to look at the technologies through which patent law construes its object – the invention – in specific settings and periods by examining procedures, classifications, archives, models, repositories, patent specifications (in both their linguistic and pictorial dimensions), and the highly specialized language of patent claims. More ambitiously, we could treat intellectual property as a technology itself. Patent law does not evolve either by merely articulating its doctrine in response to technological developments. The line between what does and does not count as invention may be redrawn with the emergence of new objects and technologies, but is not determined by them. It is this constructive feature of the law that we are trying to capture with the notion of law as technology. We hope that thinking about the technologies of the law and the law as technology will bring into question what we mean by both “technology” and “law”.
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Banasevych, Iryna I., Ruslana M. Heints, Mariia V. Lohvinova, and Oksana S. Oliinyk. "Features of the legal status of subjects of Civil Law." Journal of the National Academy of Legal Sciences of Ukraine 28, no. 2 (June 25, 2021): 181–88. http://dx.doi.org/10.37635/jnalsu.28(2).2021.181-188.
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Theoretical and applied research of the features of the legal status of the subjects of civil law remains debatable today. Doctrinal and legislative analysis of this subject points to unresolved issues in this area. In particular, the provision on defining the state as a party to civil law remains controversial. There is no consensus on the definition of individuals and legal entities as subjects of civil law among scholars. Furthermore, the legal regulation of certain types of entities is somewhat unsystematic and chaotic. This is largely due to the insufficient development of theoretical issues related to the subjects of civil law. The above issues determine the relevance of the study of the features of the legal status of subjects of civil law. The purpose of the study is to investigate the features of the legal status of subjects of civil law based on doctrinal and legislative analysis. The study is based on a systematic approach, which lies in studying a complex system of relationships between subjects of civil law. Furthermore, the study is based on the laws and principles of dialectics, which contribute to the study of the legal status of the subjects of civil law. Systemic and structural-functional analysis was used to comprehensively describe the legal status of subjects of civil law. The historical method contributed to the study of the evolution of research on the subjects of civil law. The formal legal method helped identify the special features of the provisions of regulations concerning the subjects of civil law. With the help of the comparative legal method, the study analysed the provisions of the Civil Code of Ukraine in terms of regulation of subjects of civil law and such regulation was compared with other countries. The study defined the concepts and types of subjects of civil law and considered the features of the legal status of individuals, legal entities, as well as the state as a special participant of civil law. Special attention was paid to the historical analysis of the development of approaches to the definition of subjects of law, starting with Roman law
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Petersson, Sandra. "A Short History of Western Legal Theory by J M Kelly." Victoria University of Wellington Law Review 31, no. 4 (November 1, 2000): 901. http://dx.doi.org/10.26686/vuwlr.v31i4.5931.
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This article is a book review of J M Kelly A Short History of Western Legal Theory (reprint, Clarendon Press, Oxford, 1997) (466 + xvi pages, $75). Kelly's aim was to make the reader see jurisprudence in its historical setting, something that Petersson agrees was done well. The book discusses the history of Western legal theory through the ages, tracing key themes including Theory of the State, Validity of Law, Rule of Law, Nature and Purpose of Law, Natural Law, Equality, Property, Equity, Criminal Law and Punishment, and International Law. Petersson notes that Kelly's work is notably non-Anglocentric. However, Petersson comments on Kelly's failure to treat positivism as its own separate conception of law, as well as Kelly's omission of feminist legal theories.