Epistemic Uncertainty and Legal Theory by Brian Burge-Hendrix (Aldershot, UK: Ashgate Publishing Limited, 2008). [ISBN 978-0-7546-7521-1.] All page references in parentheses are to this book.

2010 ◽  
Vol 23 (1) ◽  
pp. 249-253
Author(s):  
Philip Soper
Keyword(s):  
Natural Law ◽  
Legal Theory ◽  
Epistemic Uncertainty ◽  
Moral Authority ◽  
Proper Place ◽  
Legal Standards ◽  
The Concept Of Law ◽  
Theory Of Law ◽  
Publishing Limited ◽  
Concept Of Law

Making the perspective of insiders critical to a theory of law, including particularly those who accept and enforce legal standards, has been the hallmark of corrections to John Austin’s theory at least since Hart’s The Concept of Law. Burge-Hendrix’s book continues this tradition and brings its insights to bear on the particular dispute between inclusive and exclusive positivists. That being said, the project has always seemed to me to be incomplete. If the participant’s perspective is indeed the critical one, then the recognition that participants make normative claims about the concept of law itself (not just about their legal standards) surely deserves its own proper place in a legal theory. Those normative claims about law range, at the very least, from claims that coercion is (morally) justified to claims of (moral) authority. If these claims turn out to be false in cases of laws that are extremely unjust, then either they are not “laws” at all according to the participants’ own views(in which case the natural law theorists are correct.) Or, participants will have to give up their normative claims about law and recognize that all that counts is pedigree and the power to coerce. In that case, we will be back to Austin’s coercive account of law, and much of the dispute between exclusive and inclusive positivists will be irrelevant.

Diritto e natura a Oxford: il caso di H.L.A. Hart

2009 ◽  
pp. 181-192
Author(s):  
Carolina Gasparoli
Keyword(s):  
Natural Law ◽  
Legal Theory ◽  
Ronald Dworkin ◽  
Oxford University ◽  
Starting Point ◽  
Philosophical Background ◽  
The Concept Of Law ◽  
Concept Of Law

- Hart is one of the most prominent philosophers of law of the last century. Published in 1961, his book The Concept of Law has influenced many of the leading figures in contemporary legal theory. Hart held the Chair of Jurisprudence at Oxford University from 1952 until 1968 and he chose Ronald Dworkin as his successor. In his last book Diritto e natura. H.L.A. e la filosofia di Oxford, Mario Ricciardi takes the uneasy relationship between the two philosophers as the starting point of his inquiry and claims that Dworkin's critique of Hart's legal theory has misinterpreted many relevant aspects of Hart's approach to law. As a result, many scholars have paid little attention to the cultural and philosophical background of Hart's work. In particular, Ricciardi suggests that, in this work, Hart uses a specific notion of analysis, namely connective analysis, which Gilbert Ryle and Peter F. Strawson had opposed to the decompositive one. Such a reading of The Concept of Law generates a new understanding of the role played by the minimum content of natural law in Hart's legal theory.

The Concept of Law

1950 ◽  
Vol 10 (3) ◽  
pp. 423-431
Author(s):  
B. E. King
Keyword(s):  
Social Sciences ◽  
Legal Theory ◽  
Legal Science ◽  
The Social ◽  
Points Of View ◽  
The Concept Of Law ◽  
Theory Of Law ◽  
Final Work ◽  
Concept Of Law

Twenty years ago Mr. Cairns set himself the task of looking at law from three points of view, that of the social sciences, that of logic and the empirical sciences, and that of philosophy. Law and the Social Sciences was published in 1935, the Theory of Legal Science in 1941. The volume under review completes the trilogy. The object of all these volumes is the same—‘To construct the foundation of a theory of law which is the necessary antecedeat of a possible jurisprudence’. All those who have come under the spell of Mr. Cairns' stimulating thought will look forward with the greatest interest to the application and expansion of his conclusions which is now promised us in a projected final work, The Elements of Legal Theory.

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.

Choosing a Legal Theory on Moral Grounds

1986 ◽  
Vol 4 (1) ◽  
pp. 31-48 ◽  
Author(s):  
Philip Soper
Keyword(s):  
Natural Law ◽  
Moral Theory ◽  
Legal Theory ◽  
Moral Authority ◽  
Legal Positivism ◽  
The Other ◽  
Law And Morality ◽  
The Cost ◽  
Practical Implications

I. INTRODUCTIONTwenty-five years is roughly the time that has elapsed since the exchange between H. L. A. Hart and Lon Fuller and the subsequent revival in this country of the natural law/positivism debate. During this time, a curious thing has happened to legal positivism. What began as a conceptual theory about the distinction between law and morality has now been turned, at least by some, into a moral theory. According to this theory, the reason we must see law and morality as separate is not (at least not entirely) because of the logic of our language, but because of the practical implications of holding one or the other of the two traditional views in this area. The natural law theorist, it is said, can connect law and morality only at the cost of investing official directives with undeserved moral authority, thus encouraging obedience where there should be none. The natural law position should therefore be rejected – and the positivist's accepted – on moral grounds.

scholarly journals WHY LEGAL THEORY IS POLITICAL PHILOSOPHY

Legal Theory ◽  
2013 ◽  
Vol 19 (4) ◽  
pp. 331-346
Author(s):  
William A. Edmundson
Keyword(s):  
Political Philosophy ◽  
Legal Theory ◽  
Moral Judgments ◽  
Legal Institutions ◽  
Legal Norms ◽  
Evaluative Judgments ◽  
Adequate Theory ◽  
The Concept Of Law ◽  
Theory Of Law ◽  
Legal Theorist

The concept of law is not a theorist's invention but one that people use every day. Thus one measure of the adequacy of a theory of law is its degree of fidelity to the concept as it is understood by those who use it. That means “saving the truisms” as far as possible. There are important truisms about the law that have an evaluative cast. The theorist has either to say what would make those evaluative truisms true or to defend her choice to dismiss them as false of law or not of the essence of law. Thus the legal theorist must give an account of the truth grounds of the more central evaluative truisms about law. This account is a theory of legitimacy. It will contain framing judgments that state logical relations between descriptive judgments and directly evaluative judgments. Framing judgments are not directly evaluative, nor do they entail directly evaluative judgments, but they are nonetheless moral judgments. Therefore, an adequate theory of law must make (some) moral judgments. This means that an adequate theory of law has to take a stand on certain (but not all) contested issues in political philosophy. Legal theory is thus a branch of political philosophy. Moreover, one cannot be a moral-aim functionalist about legal institutions without compromising one's positivism about legal norms.

scholarly journals The Question To Be Faced Is One of Fact: H.L.A. Hart’s Legal Theory Through His View of International Law

2021 ◽  
pp. 1-13
Author(s):  
Giovanni Bisogni
Keyword(s):  
International Law ◽  
Legal System ◽  
Legal Theory ◽  
Borderline Case ◽  
Borderline Cases ◽  
Central Case ◽  
The Concept Of Law ◽  
Domestic Law ◽  
Concept Of Law

H.L.A. Hart says that The Concept of Law is focused on municipal or domestic law because that is the “central case”1 for the usage of the word ‘law.’ At the beginning of the book he states that “at various points in this book the reader will find discussions of the borderline cases where legal theorists have felt doubts about the application of the expression ‘law’ or ‘legal system,’ but the suggested resolution of these doubts, which he will also find here, is only a secondary concern of the book.”2 Yet among those borderline cases there is one that is rather intriguing, since Hart closely discusses a particular instance of them: it is international law, to which he devotes an entire chapter—the final one—of The Concept of Law. My goal in this article is therefore to make clear why the ‘resolution’ of the borderline case of international law is not entirely ‘secondary’ to Hart’s overall project in The Concept of Law and, in so doing, to show that Chapter X is not as unhappy as many think it is.

scholarly journals Jurisprudence in the Era of Change: Subject and Structure of the Discipline

Lex Russica ◽  
2020 ◽  
Vol 1 (1) ◽  
pp. 88-117
Author(s):  
Yu. A. Vedeneev
Keyword(s):  
General System ◽  
Political Sciences ◽  
Legal Science ◽  
History Of ◽  
The Law ◽  
The Concept Of Law ◽  
Theory Of Law ◽  
Concept Representations ◽  
Canonical Texts ◽  
Concept Of Law

The law exists in the form of institutions and in the form of representations of institutions, since the representation of something (phenomenon) has a conceptual dimension in the representation of something (concept). Representations of law and representations of law are two aspects of the expression and manifestation of the general legal reality. This, in fact, leads to a fundamental dilemma in determining the subject of legal science. This is the science of law or the science of legal science. Given that the concept of law is a theory of law developed into a system of definitions, the practical language of law finds itself in the theoretical language of jurisprudence, and vice versa. The languages in which the law operates, and the languages in which the phenomenon of law is interpreted, constitute the general object and subject of jurisprudence.Jurisprudence is a conceptual part of legal reality, both an object and a subject of legal science. The evolution of jurisprudence in the cultural-historical logic of changes in its subject and methods is the basis for changes in its disciplinary structure and connections in the general system of social and political sciences. Each cultural and historical epoch of the existence of law corresponds to its own grammar of law and its own epistemology of law, that is, its own analytical language and disciplinary format of legal knowledge. The law exists in the definitions of its concept. The concept of law has both an ontological and epistemological status. One thinks of law because it exists, and one understands the law because it is defined. Each tradition of understanding the law can be conceptually seen in the phenomenon of law that other traditions of legal understanding do not see or do not notice. The history of the development of the concept of law (conceptualization of law) contains the history of the development of legal institutions (institutionalization of law). Both components of legal reality — objective and subjective grounds and conditions for the emergence and development of the phenomenon of law live in the framework definitions of their social culture, its language and discourse. That is, they live in historical forms of awareness and understanding of one’s own law — from the law indicated in rituals, myths, signs and symbols, to the law indicated in canonical texts, doctrines and concepts; from the law of disciplinary society to the law of network communities; from the law of political domination and bureaucratic management to the law of civil communications and network agreements.

scholarly journals What is Offered to the Modern Science by Leon Petrażycki? (Following Three Descriptions of Legal Principles)

Studia Humana ◽  
2018 ◽  
Vol 7 (3) ◽  
pp. 5-10
Author(s):  
Sławomir Tkacz
Keyword(s):  
Legal Theory ◽  
Modern Science ◽  
Theoretical Knowledge ◽  
Legal Principles ◽  
Current State ◽  
The Concept Of Law ◽  
Concept Of Law

Abstract The aim of this paper is to outline the general oversight of the concept of law in Leon Petrażycki’s legal theory. On the example of the principles of law, an attempt was made to answer the question, what Petrażycki’s theory proposes to modern science. In the first part of the presentation, the Author presented the current state of theoretical knowledge in the field of principles of law. The attention was paid to the problem of various characteristics of legal principles. In further considerations, an attempt was made to answer the question about adoption of models proposed by Petrażycki in the contemporary theoretical discourse. The summary presents general conclusions of the paper.

On Two Functions of Notions in Scientific Knowledge of Law

10.12737/5497 ◽  
2014 ◽  
Vol 2 (9) ◽  
pp. 18-25
Author(s):  
Ерзат Бекбаев ◽  
Erzat Bekbaev
Keyword(s):  
Scientific Knowledge ◽  
The Other ◽  
Logical Function ◽  
Complete Knowledge ◽  
Science Theory ◽  
The Law ◽  
The Concept Of Law ◽  
Theory Of Law ◽  
Amount Of Knowledge ◽  
Concept Of Law

The function of the concept of law in scientific knowledge is shown as an exact idea about the signs of law distinguishing it from the other objects. Another logical function of concept of law is in the ability to reflect in thoughts more or less complete result, the amount of knowledge about the law. It is argued that the essence of law can be known, provided the pre-obtained full and complete knowledge of the law as a special subject of scientific knowledge. The possibility of using logical principles of the construction of scientific theories in the science theory of law.

scholarly journals Contra o Conceito do Direito: Ontologia e Epistemologia no Problema da Definição do Direito

2018 ◽  
Author(s):  
Ítalo Oliveira
Keyword(s):  
Legal Theory ◽  
Scientific Activity ◽  
Point Of View ◽  
Epistemological Problem ◽  
Specific Object ◽  
Advance Research ◽  
The Concept Of Law ◽  
Definition Of ◽  
Ontological Problem ◽  
Concept Of Law

The problem of definition of the concept of law or at least the description of features of legal phenomenon presents variation about the implications of its solution and about the worries around it. The forms of this problem I am interested in are related to ontology and epistemology in legal philosophy: ‘What is the law?’ as (1) a question about the definition of the essence of law and (2) about the definition of a specific object of investigation for sciences about the supposed legal phenomenon – philosophy of law, legal theory, and science of law, for instance. Challenging its premises and trying to avoid both the ontological problem and epistemological problem, I propose a change of perspective from pragmatic concerns what I call the “manager's point of view”: a vision of who should manage the finite economic resources to finance scientific activity in the area of law. I argue that, starting from there, the problem of defining the concept of law as an ontological problem and as a epistemological problem is an unnecessary problem whose solution is useless to advance research in the field of law. I propose a reorientation of the controversy that has implications on how to see the researches and the education in this field.

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