Judging Positivism by Margaret Martin*

2015 ◽  
Vol 28 (2) ◽  
pp. 461-467
Author(s):  
Andrew Halpin
Keyword(s):  
Legal Theory ◽  
Legal Positivism ◽  
Thoughtful Reflection ◽  
Joseph Raz ◽  
Theory Of Law ◽  
The Relationship

This review of Margaret Martin’s book, Judging Positivism, considers the three levels on which her book operates as an intricate study of the principal works of Joseph Raz; a challenging critique of legal positivism, and a thoughtful reflection on the potential of legal theory. The main focus of the review is Martin’s argument against Raz’s exclusive positivism, which proceeds by identifying a change in the premises or theses of Raz’s theory of law over the course of his different writings, and then making an accusation of inconsistency and incoherence against Raz. The review examines the nature of Martin’s accusation and suggests some possible responses to it. It also comments on the relationship between Martin’s assessment of Raz and her wider rejection of legal positivism, and on her related concerns for the potential of legal theory.

Kelsen – Which Kelsen? A Reapplication of the Pure Theory to International Law

2009 ◽  
Vol 22 (2) ◽  
pp. 225-249 ◽  
Author(s):  
JÖRG KAMMERHOFER
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Pure Theory ◽  
Municipal Law ◽  
Hans Kelsen ◽  
Theory Of Law ◽  
The Right ◽  
Relationship Of ◽  
The Relationship ◽  
Legal Theorist

AbstractHans Kelsen is known both as a legal theorist and as an international lawyer. This article shows that his theory of international law is an integral part of the Kelsenian Pure Theory of Law. Two areas of international law are analysed: first, Kelsen's coercive order paradigm and its relationship to the bellum iustum doctrine; second, the Kelsenian notion of the unity of all law vis-à-vis theories of the relationship of international and municipal law. In a second step, the results of Kelsenian general legal theory of the late period – as interpreted and developed by the present author – are reapplied to selected doctrines of international law. Thus is the coercive order paradigm resolved, the unity of law dissolved, and the UN Charter reinterpreted to show that the concretization of norms as positive international law cannot be unmade by a scholarship usurping the right to make law.

4. Modern legal positivism

2020 ◽  
pp. 97-141
Author(s):  
Raymond Wacks
Keyword(s):  
Legal System ◽  
Legal Theory ◽  
Good Deal ◽  
Legal Positivism ◽  
Hans Kelsen ◽  
Joseph Raz ◽  
Legal Positivist ◽  
Linguistic Philosophy

This chapter explores the works of some of the leading exponents of contemporary legal positivism: H. L. A. Hart, Hans Kelsen, Joseph Raz, Jules Coleman, Scott Shapiro, and others. Hart staked out the borders of modern legal theory by applying the techniques of analytical (and especially linguistic) philosophy to the study of law. Kelsen may be the least understood and most misrepresented of all legal theorists. To the extent that he insisted on the separation of law and morals, what ‘is’ (sein) and what ‘ought to be’ (sollen), Kelsen may legitimately be characterized as a legal positivist, but he is a good deal more. Raz argues that the identity and existence of a legal system may be tested by reference to three elements: efficacy, institutional character, and sources. Thus, law is autonomous: we can identify its content without recourse to morality.

scholarly journals Hart's Methodological Positivism

Legal Theory ◽  
1998 ◽  
Vol 4 (4) ◽  
pp. 427-467 ◽  
Author(s):  
Stephen R. Perry
Keyword(s):  
General Theory ◽  
Natural Law ◽  
Legal Theory ◽  
Legal Positivism ◽  
Social Phenomenon ◽  
Modern Times ◽  
Theory Of Law ◽  
Michael Moore

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.

scholarly journals El problema de la relación entre derecho y moral

2021 ◽  
pp. 65-80
Author(s):  
José Luis López Fuentes
Keyword(s):  
Natural Law ◽  
Legal Theory ◽  
Legal Positivism ◽  
Ronald Dworkin ◽  
Law And Morality ◽  
The Relationship

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.

Legal Realism in Soviet and Russian Jurisprudence

2018 ◽  
Vol 43 (4) ◽  
pp. 483-518
Author(s):  
Mikhail Antonov
Keyword(s):  
Legal Theory ◽  
Social Philosophy ◽  
Legal Positivism ◽  
Legal Realism ◽  
Political Dimension ◽  
Political Interference ◽  
Dual Character ◽  
Ideological Background ◽  
Russian Law ◽  
Theory Of Law

Soviet law is often viewed as based on legal positivism, while its ideological background and the practices of political interference are considered in an extralegal (political) dimension. This logic prompts conclusions about the dual character of Soviet law where prerogative and normative dimensions constituted two parallel systems. Similar opinions are sometimes expressed about Russian law, which is a continuator of Soviet law both normatively and factually. The present paper analyzes this approach and suggests that the alleged dualism can be considered in the light of the basic presuppositions and methods of the Soviet (Russian) theory of law and state. This jurisprudence was and still is based on a combination of formalism and anti-formalism (realism) which provided a certain degree of unity and coherence of legal knowledge. After the end of Soviet rule, legal theory in Russia still orients itself to this symbiosis of positivism and realism which underlies legal education and legal scholarship. The paper addresses the philosophical and methodological origins of this Russian (Soviet) legal realism, and argues that the particular character of Russian (Soviet) law can be explained against the backdrop of this theoretical combination that combines conservative social philosophy, a Schmittean conception of exception, methods of legal positivism and the spirit of legal nihilism. These particularities and their methodological background are, in the author’s opinion, among the distinguishing features of Russian law and legal culture.

scholarly journals The Place of Legitimacy in Legal Theory

2011 ◽  
Vol 57 (1) ◽  
pp. 1-35 ◽  
Author(s):  
Dan Priel
Keyword(s):  
Legal Theory ◽  
Legal Positivism ◽  
Legal Norms ◽  
Second Stage ◽  
The Right ◽  
The Relationship ◽  
Preliminary Consideration

In this essay I argue that in order to understand debates in jurisprudence one needs to distinguish clearly between four concepts: validity, content, normativity, and legitimacy. I show that this distinction helps us, first, make sense of fundamental debates in jurisprudence between legal positivists and Dworkin: these should not be understood, as they often are, as debates on the conditions of validity, but rather as debates on the right way of understanding the relationship between these four concepts. I then use this distinction between the four concepts to criticize legal positivism. The positivist account begins with an attempt to explain the conditions of validity and to leave the question of assessment of valid legal norms to the second stage of inquiry. Though appealing, I argue that the notion of validity cannot be given sense outside a preliminary consideration of legitimacy. Following that, I show some further advantages that come from giving a more primary place to questions of legitimacy in jurisprudence.

WILLIAM JETHRO BROWN'S CRITIQUE OF JOHN AUSTIN'S LEGAL THEORY AS A STAGE IN THE DEVELOPMENT OF LEGAL POSITIVISM

2021 ◽  
Vol 14 (6) ◽  
pp. 60-65
Author(s):  
ANASTASIA KORZHENYAK ◽  
◽  
ANTON MIKHAILOV
Keyword(s):  
New Zealand ◽  
Legal Theory ◽  
External Action ◽  
Legal Positivism ◽  
Legal Doctrine ◽  
Legal Principles ◽  
Anglo American ◽  
Theory Of Law ◽  
Legal Understanding

The purpose of the research. This article analyses the main points of the legal teaching of the Australian jurist William Jethro Brown (1868-1930), which the authors of this study regard as forming one of the significant stages in the evolution of Anglo-American legal positivism. Along with his contemporaries, a New Zealand lawyer John William Salmond (1862-1924) and British jurists Thomas Erskine Holland (1835-1926) and John Mason Lightwood (1852-1947), Brown was among the first critics of the «command theory of law» of the founder of the analytical school of jurisprudence John Austin (1790-1859). The authors of this article prove that the ideas, including those of W. Brown, play the role of a link between the founders of the analytical school of law (J. Bentham, J. Austin), the teachings of William Markby, Sheldon Amos, and subsequent generations of English legal scholars of both positivist and neo-positivist direction. Many provisions of Brown's legal doctrine became the basis for criticism of Austin's command concept and legal understanding in the teachings of H. L. A. Hart, the central figure of English neopositivism of the 20th century. As a result of the research the authors conclude that there are comparative similarities between W. J. Brown's conception of «rules of external action», J. W. Salmond's idea of «ultimate legal principles» and H. L. A. Hart's legal doctrine on the «rule of recognition».

scholarly journals American Legal Theory and American Legal Education: A Snake Swallowing its Tail?

2011 ◽  
Vol 12 (1) ◽  
pp. 67-95
Author(s):  
John Henry Schlegel
Keyword(s):  
Legal History ◽  
Legal Theory ◽  
Legal Education ◽  
Law School ◽  
Christopher Columbus ◽  
Legal Doctrine ◽  
Legal Realism ◽  
Current Events ◽  
Theory Of Law ◽  
The Relationship

My story is a story about American Legal Realism. It is part of an attempt to understand what Realism was by addressing the question, “Why is the study of Realism a subject of legal history and not of current events?” Of course, the “answer” to such a question is made up of several partial answers, of which what follows is but one. Others would talk about the relationship between legal doctrine and capitalist economic development or about legal theory and political philosophy or about legal theory and legal practice, to name a few examples. However, this partial answer can best be approached by examining how a simple idea about law - the liberal idea of the rule of law in its guise as the “rule theory of law” - has had in its rise and in its demise an impact on legal education and to attempt to understand why that is so. My attempt however, requires that I start my story back aways with Christopher Columbus Langdell and the Harvard Law School.

Legal Theory and Legal Doctrinal Scholarship

2010 ◽  
Vol 23 (2) ◽  
pp. 483-514 ◽  
Author(s):  
Mátyás Bódig
Keyword(s):  
Legal System ◽  
Legal Theory ◽  
Vital Role ◽  
Legal Positivism ◽  
Legal Practice ◽  
Making Sense ◽  
The Relationship

The essay is an attempt to clarify some issues concerning the point of doing conceptual legal theory. It provides a reassessment of the relationship between conceptual legal theory, legal doctrinal scholarship and the legal practice. The analysis concentrates on what may be termed the ‘mainstream’ discourse on conceptual legal theory (characterised by authors like Hart, Raz, Dworkin, Finnis), and depicts the mainstream discourse as functionally connected to legal doctrinal scholarship. The essay argues that a more open commitment to reflecting current problems of legal doctrinal scholarship would make the position of mainstream conceptual legal theory more intelligible. If it wants to maintain its position as a complex theoretical discourse, mainstream conceptual legal theory must take direct responsibility for serving the epistemic needs of legal doctrinal scholarship – by way of providing conceptual and methodological foundations for it. Conceptual legal theory can make a contribution to doctrinal debates by relying on its ability to assess competing doctrinal claims in light of the epistemological characteristics of the legal doctrines in a modern legal system. The mainstream conceptual discourse can also have a vital role in in making sense of the external challenges to legal doctrinal scholarship. Such cionsiderations lead to a criticism of Hartian methodological legal positivism: it is blamed for becoming oblivious of the ways in which the mainstream conceptual discourse is parasitic on the conceptual tensions encountered or even generated by doctrinal scholarship.

scholarly journals In search of moral foundations of law: debate on nature of inclusive legal positivism

2021 ◽  
Vol 6 (4) ◽  
pp. 119-123
Author(s):  
A. B. Didikin ◽  
Keyword(s):  
Legal System ◽  
Legal Theory ◽  
Applied Ethics ◽  
Legal Positivism ◽  
Moral Foundations ◽  
Judicial Practice ◽  
Theoretical Approaches ◽  
Law And Morality ◽  
Necessary And Sufficient ◽  
The Relationship

The paper is devoted to the analysis of the arguments of foreign jurists about the nature and advantages of inclusive legal positivism as a legal theory that justifies the existence of moral foundations of the legal system. Examples from judicial practice are considered, as well as key theoretical approaches that reveal the necessary and sufficient features of inclusive legal positivism, as well as its subject specifics and basic provisions on the relationship between law and morality. The paper is prepared within the framework of the HSE research project «Applied Ethics».

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