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.

4. Modern legal positivism

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.

Sources in Legal-Positivist Theories

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.

scholarly journals Philosophical Study of Hans Kelsen's Thoughts on Law and Satjipto Rahardjo's Ideas on Progressive Law

2019 ◽  
Vol 1 (2) ◽  
pp. 195
Author(s):  
Muhammad Harun
Keyword(s):  
Legal System ◽  
Legal Theory ◽  
Legal Positivism ◽  
Philosophical Study ◽  
Philosophical Approach ◽  
Positive Law ◽  
Human Aspects ◽  
Hans Kelsen ◽  
The Law ◽  
And Behavior

<p>The purpose of this paper is to compare and evaluate the thoughts of Hans Kelsen with Satjipto Raharjo. Both offer their respective theories, namely Hans Kelsen's pure legal theory and Satjipto Rahardjo's progressive law. In this theory, both of them base their philosophical approach. After reviewing, the theories of these two figures are relevant for interpreting the law. This paper uses a critical paradigm with a combination of normative or doctrinal and sociological or non-doctrinal approaches. The results showed that Hans Kelsen directed his mind that legal positivism considers moral speech, values are finished and final when it comes to the formation of positive law. Pure Legal Theory is not a perfect copy of transcendental ideas, but it does not try to see the law as a posterity of justice. While Rahardjo's progressive law rests on the aspects of rules and behavior. Regulations will build a positive and rational legal system. While the behavioral or human aspects will drive the rules and systems that are built.</p><p> </p><p>Tujuan penulisan ini adalah untuk membandingkan dan mengevaluasi pemikiran Hans Kelsen dengan Satjipto Raharjo. Keduanya menawarkan teori masing-masing, yaitu teori hukum murni Hans Kelsen dan hukum progresif Satjipto Rahardjo. Dalam teori ini, keduanya sama-sama mendasarkan pendekatan secara filosif. Setelah dikaji, teori dari kedua tokoh ini relevan untuk memaknai hukum. Tulisan ini menggunakan paradigima kritis dengan pendekatan kombinasi normatif atau doktrinal dan sosiologis atau non doktrinal. Hasil penelitian menunjukkan bahwa Hans Kelsen lebih mengarahkan pikirannya bahwa positivisme hukum yang menganggap pembicaraan moral, nilai-nilai telah selesai dan final manakala sampai pada pembentukan hukum positif. Teori Hukum Murni bukanlah salinan ide transendental yang sempurna, namun tidak berusaha memandang hukum sebagai anak cucu keadilan. Sementara hukum progresifnya Rahardjo bertumpu pada aspek peraturan dan perilaku (rules and behavior). Peraturan akan membangun suatu sistem hukum positif yang logis dan rasional. Sedangkan aspek perilaku atau manusia akan menggerakkan peraturan dan sistem yang dibangun. </p>

Incorporationism, Conventionality, and the Practical Difference Thesis

Legal Theory ◽  
1998 ◽  
Vol 4 (4) ◽  
pp. 381-425 ◽  
Author(s):  
Jules L. Coleman
Keyword(s):  
Good Deal ◽  
Legal Positivism ◽  
Ronald Dworkin ◽  
Lively Debate ◽  
Joseph Raz ◽  
Legal Positivist ◽  
The Concept Of Law ◽  
Influential Book ◽  
Proper Interpretation ◽  
Concept Of Law

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.

scholarly journals Philosophical Study of Hans Kelsen's Thoughts on Law and Satjipto Rahardjo's Ideas on Progressive Law

2019 ◽  
Vol 1 (2) ◽  
pp. 199
Author(s):  
Muhammad Harun
Keyword(s):  
Legal System ◽  
Legal Theory ◽  
Legal Positivism ◽  
Philosophical Study ◽  
Philosophical Approach ◽  
Positive Law ◽  
Human Aspects ◽  
Hans Kelsen ◽  
The Law ◽  
And Behavior

<p>The purpose of this paper is to compare and evaluate the thoughts of Hans Kelsen with Satjipto Raharjo. Both offer their respective theories, namely Hans Kelsen's pure legal theory and Satjipto Rahardjo's progressive law. In this theory, both of them base their philosophical approach. After reviewing, the theories of these two figures are relevant for interpreting the law. This paper uses a critical paradigm with a combination of normative or doctrinal and sociological or non-doctrinal approaches. The results showed that Hans Kelsen directed his mind that legal positivism considers moral speech, values are finished and final when it comes to the formation of positive law. Pure Legal Theory is not a perfect copy of transcendental ideas, but it does not try to see the law as a posterity of justice. While Rahardjo's progressive law rests on the aspects of rules and behavior. Regulations will build a positive and rational legal system. While the behavioral or human aspects will drive the rules and systems that are built.</p><p> </p><p>Tujuan penulisan ini adalah untuk membandingkan dan mengevaluasi pemikiran Hans Kelsen dengan Satjipto Raharjo. Keduanya menawarkan teori masing-masing, yaitu teori hukum murni Hans Kelsen dan hukum progresif Satjipto Rahardjo. Dalam teori ini, keduanya sama-sama mendasarkan pendekatan secara filosif. Setelah dikaji, teori dari kedua tokoh ini relevan untuk memaknai hukum. Tulisan ini menggunakan paradigima kritis dengan pendekatan kombinasi normatif atau doktrinal dan sosiologis atau non doktrinal. Hasil penelitian menunjukkan bahwa Hans Kelsen lebih mengarahkan pikirannya bahwa positivisme hukum yang menganggap pembicaraan moral, nilai-nilai telah selesai dan final manakala sampai pada pembentukan hukum positif. Teori Hukum Murni bukanlah salinan ide transendental yang sempurna, namun tidak berusaha memandang hukum sebagai anak cucu keadilan. Sementara hukum progresifnya Rahardjo bertumpu pada aspek peraturan dan perilaku (rules and behavior). Peraturan akan membangun suatu sistem hukum positif yang logis dan rasional. Sedangkan aspek perilaku atau manusia akan menggerakkan peraturan dan sistem yang dibangun. </p>

The Sources of Law[121]

2019 ◽  
pp. 89-126
Author(s):  
Alf Ross
Keyword(s):  
Legal System ◽  
Legal Theory ◽  
Legal Positivism ◽  
Cultural Tradition ◽  
Legal Systems ◽  
Legal Rules ◽  
The Difference ◽  
Realist Perspective

This chapter identifies the ideology of the sources of law in the sense of determining the general sources through which judges form their beliefs about the validity of individual legal rules. In accordance with the norm-descriptive perspective, the focus is on identifying the ideology of the sources of law that is actually held by judges. As part of scientifically valid law, the ideology of the sources of law varies from one legal system to another. The task for general legal theory can therefore only consist in stating and characterizing certain general types of sources of law, which experience tells us are found in all well-developed legal systems where they are found to determine how courts proceed in their search for the norms on which they base their decision. This chapter identifies four such sources of law and considers the degree of objectification or positivization possessed by each of these types of sources. Specifically, it discusses the completely objectivized type of source: authoritative formulations (legislation in its widest sense); and the partially objectivized types of source: precedent and custom; and the non-objectivized, ‘free’ type of source: ‘cultural tradition’ or ‘the nature of the matter’. Countenancing the latter as a scientifically valid source of law, is further argued to highlight the difference between the author’s legal realist perspective and the formalist perspective characteristic of legal positivism.

Legality Without The Rule of Law? Scott Shapiro on Wicked Legal Systems

2012 ◽  
Vol 25 (1) ◽  
pp. 183-200
Author(s):  
David Dyzenhaus
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Natural Law ◽  
Legal Order ◽  
Legal Positivism ◽  
Legal Systems ◽  
The Rule Of Law ◽  
Moral Quality ◽  
Legal Positivist

InLegality,Scott Shapiro – a leading legal positivist – analyses the problem of a wicked legal system in a way that brings him close to natural law positions. For he argues that a wicked legal system is botched as a legal system and I show that such an argument entails a prior argument that there is some set of standards or criteria internal to law which are both moral and legal. As a result, the more successful a legal order is legally speaking, the better the moral quality of its law, and the more it is a failure morally speaking, the worse the legal quality of its law. It is such moral features of law that Shapiro concedes make it plausible to account for law’s claim to justified authority over its subjects. However, Shapiro cannot, as a legal positivist, accept this entailment. His book thus brings to the surface and illuminates a central dilemma for legal positivism. If legal positivists wish to account for the authority of law they have to abandon legal positivism’s denial that law has such moral features. If they do not, they should revive a form of legal positivism that specifically abjures any claim to account for law’s normative nature.

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.

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

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.

scholarly journals Legal Positivism, Positive Law, and the Positivisation of Islamic Law In Indonesia

ULUMUNA ◽  
2018 ◽  
Vol 22 (1) ◽  
pp. 77-95
Author(s):  
Muslihun Muslihun
Keyword(s):  
Legal System ◽  
Islamic Law ◽  
The State ◽  
Legal Positivism ◽  
Considerable Degree ◽  
Discursive Practice ◽  
Legal Philosophy ◽  
State Law ◽  
Positive Law ◽  
Hans Kelsen

This study elucidates the legal positivism and critically compares it with other schools of philosophy of law. Debates on the legislation of Islamic law in Indonesian can be traced back to the discursive practice of legal philosophy such as legal positivism. Indonesia as a law-based state (rechtsaat) adopts to a considerable degree legal positivism. However, it cannot be said that pure legal positivism, as it is promoted by its thinkers such as John Austin and Hans Kelsen, is applied because the Indonesian legal system accept morality such as religious and customary norms as the ground of legislation. By examining the postivisation of Islamic law, that is the legislation of Islamic law into the state legal system, this study argues that morale, ethics or norms derived from religion and customs are accepted to the state law. They can be used as the source of justice while justice in the positivists’ view refers to the code and statute endorsed by those who are in authority or power to do that. It thus denies the view of legal positivists who reject ethics or norms beyond the state law as non-law.

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