Incorporationism, Conventionality, and the Practical Difference Thesis

H.L.A. Hart's The Concept of Law is the most important and influential book in the legal positivist tradition. Though its importance is undisputed, there is a good deal less consensus regarding its core commitments, both methodological and substantive. With the exception of an occasional essay, Hart neither further developed nor revised his position beyond the argument of the book. The burden of shaping the prevailing understanding of his views, therefore, has fallen to others: notably, Joseph Raz among positivists, and Ronald Dworkin among positivism's critics. Dworkin, in particular, has framed, then reframed, the conventional understanding, not only of Hart's positivism, but of the terms of the debate between positivists and him. While standing on the sidelines, Hart witnessed the unfolding of not only a lively debate between positivists and Dworkin, but an equally intense one among positivists as to positivism's (and his) core claims. The most important debate has been between so-called inclusive and exclusive positivists: a debate as much about Hart's legacy as about the proper interpretation of legal positivism.

Download Full-text

4. Modern legal positivism

10.1093/he/9780198864677.003.0004 ◽

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.

Download Full-text

4. Modern legal positivism

Understanding Jurisprudence ◽

10.1093/he/9780198806011.003.0004 ◽

2017 ◽

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: HLA 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.

Download Full-text

The legal consequences of jus cogens and the individuation of norms

Leiden Journal of International Law ◽

10.1017/s0922156520000357 ◽

2020 ◽

Vol 33 (4) ◽

pp. 893-909

Author(s):

Ulf Linderfalk

Keyword(s):

International Law ◽

General Assumption ◽

Legal Decisions ◽

International Crimes ◽

Judicial Proceedings ◽

Legal Positivist ◽

The Concept Of Law ◽

Jus Cogens ◽

Legal Consequences ◽

Concept Of Law

AbstractInternational law ascribes to the conferral of a jus cogens status on a norm a particular legal significance. Bluntly put, jus cogens norms have legal consequences that norms of ordinary international law do not. International lawyers have a great many different ideas of what these legal consequences are more precisely. As of yet, the reason for this divide has not been fully clarified. This void tends to confuse jus cogens discourse on several issues such as the immunity of states and state officials in judicial proceedings originating in the violation of jus cogens norms, or the extradition of alleged perpetrators of international crimes, or again the non-applicability of amnesty laws concerning such crimes. It also impedes the justification of judicial and other legal decisions.As this article argues, contrary to the general assumption, a lawyer’s conception of the legal consequences of jus cogens is not theory-neutral but dependent on his or her preferred understanding of the concept of law. The argument goes briefly as follows: (i) What causes international lawyers to disagree is the issue of whether or not jus cogens norms entail obligations concerned with their own enforcement; (ii) this is essentially an issue concerning the individuation of norms; (iii) depending on whether a lawyer takes the position of a legal positivist or a legal idealist, he or she uses different criteria for the individuation of jus cogens norms; and (iv) this is why, for legal idealists, jus cogens norms entail obligations concerned with their own enforcement, whereas for legal positivists they do not.

Download Full-text

On the Separability of Law and Morality

Canadian Journal of Law & Jurisprudence ◽

10.1017/s0841820900003933 ◽

2004 ◽

Vol 17 (2) ◽

pp. 315-335 ◽

Cited By ~ 3

Author(s):

Matthew H. Kramer

Keyword(s):

Legal Positivism ◽

Large Array ◽

Ronald Dworkin ◽

The Past ◽

Moral Domain ◽

Joseph Raz ◽

Law And Morality ◽

Legal Domain ◽

Necessary Connections ◽

Prevailing View

If there is one doctrine distinctively associated with legal positivism, it is the separability of law and morality. Both in opposition to classical natural-law thinkers and in response to more recent theorists such as Ronald Dworkin and Lon Fuller, positivists have endeavored to impugn any number of ostensibly necessary connections between the legal domain and the moral domain. Such is the prevailing view of legal positivism among people familiar with jurisprudence. During the past couple of decades, however, that prevailing view has come into question among some estimable legal positivists. In particular, Joseph Raz and his followers have queried the importance and the very tenability of an insistence on the separability of law and morality. The present article maintains that the traditional view of legal positivism is correct and that the recent skepticism about it on the part of some positivists is unfounded. When the notion of the disjoinability of law and morality is understood properly as a large array of theses, it proves to be resistant to the challenges that have been mounted against it.

Download Full-text

Sources in Legal-Positivist Theories

10.1093/law/9780198745365.003.0016 ◽

2018 ◽

Author(s):

David Lefkowitz

Keyword(s):

International Law ◽

Legal Positivism ◽

Customary International Law ◽

Plausible Account ◽

Normative Practice ◽

Hans Kelsen ◽

Joseph Raz ◽

Legal Positivist ◽

Social Source

This chapter begins by examining the case for legal positivism. Legal positivism is understood as the thesis that the existence of law is a matter of its social source, regardless of its merits. Descriptive, normative, and conceptual arguments are considered, with the aim of demonstrating that what follows for the sources of international law from the commitment to positivism depends on the specific defence offered for accepting it as an account of the nature of law. The remainder of the chapter examines the possibility of customary international law: given that custom can and does serve as a source of international law, positivists owe a plausible account of how customary rules are made or posited. A preliminary argument for the compatibility of the normative practice account of custom with the respective arguments of Hans Kelsen and Joseph Raz for legal positivism brings the chapter to a close.

Download Full-text

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

TEORIA POLITICA ◽

10.3280/tp2009-002010 ◽

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.

Download Full-text

Judicial Discretion and the Concept of Law

The Cambridge Law Journal ◽

10.1017/s0008197300086578 ◽

1976 ◽

Vol 35 (1) ◽

pp. 135-157 ◽

Cited By ~ 3

Author(s):

Joseph M. Steiner

Keyword(s):

Judicial Discretion ◽

Ronald Dworkin ◽

Legal Argument ◽

Judicial Reasoning ◽

The Concept Of Law ◽

Concept Of Law

In a series of recent papers Professor Ronald Dworkin has presented a critique of the legal positivist's analysis of law as typified by the work of H. L. A. Hart. Dworkin argues that the “model of rules” provides an incomplete and inadequate characterisation of the nature of legal argument and judicial reasoning and, hence, of law, by virtue of its failure to recognise that judges are bound, in making decisions, not only by rules, but also by principles which have rather different logical properties.

Download Full-text

Quasi-Expressivism about Statements of Law

10.1093/oso/9780198828174.003.0002 ◽

2018 ◽

Author(s):

Stephen Finlay ◽

David Plunkett

Keyword(s):

Legal Discourse ◽

Legal Positivism ◽

Relational Semantics ◽

Pragmatic Account ◽

The Law ◽

The Concept Of Law ◽

Concept Of Law

Speech and thought about what the law is commonly function in practical ways to guide or assess behavior. These functions have often been seen as problematic for legal positivism in the tradition of H.L.A. Hart. One recent response is an expressivist analysis of legal statements. This paper advances a rival, positivist-friendly account of legal statements which the authors call “quasi-expressivist”. It combines a descriptivist, “rule-relational” semantics with a pragmatic account of the expressive and practical functions of legal discourse. This approach is at least as well-equipped as expressivism to explain the practical features of “internal” legal statements and a fundamental kind of legal disagreement, while handling better “external” legal statements. The chapter develops this theory in a Hartian framework, and also argues (against Kevin Toh’s expressivist interpretation) that Hart’s own views in The Concept of Law are best reconstructed along quasi-expressivist lines.

Download Full-text

Positively Fabulous: Why It Is Good To Be a Legal Positivist

Canadian Journal of Law & Jurisprudence ◽

10.1017/s0841820900001521 ◽

1997 ◽

Vol 10 (2) ◽

pp. 231-248

Author(s):

James Allan

Keyword(s):

Legal System ◽

Natural Law ◽

Moral Values ◽

Legal Positivism ◽

Legal Philosophy ◽

Critical Legal Studies ◽

Classic Work ◽

Legal Studies ◽

Legal Positivist ◽

The Concept Of Law

‘Legal Positivism’ is a much abused term. It is often pejoratively invoked by those occupying both the natural law and critical legal studies ramparts. The former see it as a school of thought which ignores the role in law of those standards and values which have not been deliberately laid down or unintentionally evolved. Positivism, for them, fails because it is prepared to describe a legal world where moral values play no necessary part and where transcendent values may not exist at all. The latter group of critics, not too dissimilarly, see legal positivism’s doctrines as over-reliant on rules and too inclined to accept that a legal system somehow can generate a logically mandated code of answers.In order to defend positivism it is advisable to start with an enunciation of its core precepts. With all that has been written attacking and supporting positivism though, this can be a contentious matter. So instead I shall defend one particular version of positivism, that of H.L.A. Hart. As Hart’s The Concept of Law, first published in 1961, is at worst one of the handful of great legal philosophy texts written in English this century and at best “the classic work of philosophical jurisprudence”, this preference for concentrating on the tangible and identifiable precepts of Hart over the woolly, elusive and frequently caricatured precepts of something disparagingly termed positivism has much to recommend it.

Download Full-text

Patterson D. M. Dworkin on the Semantics of Legal and Political Concepts / trans. from Engl. A. B. Didikin, S. A. Aleksandrov

Omsk Scientific Bulletin Series Society History Modernity ◽

10.25206/2542-0488-2021-6-2-83-93 ◽

2021 ◽

Vol 6 (2) ◽

pp. 83-93

Author(s):

A. B. Didikin ◽

◽

S. A. Aleksandrov ◽

Keyword(s):

Natural Kind ◽

Scientific Method ◽

Natural Kinds ◽

Semantic Theory ◽

Ronald Dworkin ◽