The Concept of Positive Law and Its Relationship to Religion and Morality

2021 ◽  
Author(s):  
Baudouin Dupret
Keyword(s):  
Social Life ◽  
Conceptual Analysis ◽  
Historical Analysis ◽  
Local Order ◽  
Ian Hacking ◽  
Positive Law ◽  
The Concept Of Law ◽  
Analytical Philosopher ◽  
Professional People ◽  
Concept Of Law

Can the concept of law be extended to other times and places in which the concept as understood in most countries and societies today—as a system of norms centred on a nation state, based on a constitution, formulated through codified legislation and judicial precedents, administered by lawmakers for its inception and judges for its implementation—simply did not exist? My contention is that such an extension is, at best, useless and, at worst, misleading. Producing an intelligible jurisprudence of the concept of law means keeping it within the reasonable boundaries of what is ordinarily understood by both lay and professional people when practising ‘the’ law. Developing a socio-historical jurisprudence of law, as distinct from other normativities, entails a threefold analysis: conceptual, historical, and praxiological. Following the ground broken by analytical philosopher Ludwig Wittgenstein, conceptual analysis engages in the exposition of the grammar through which concepts acquire their signification and are meaningfully used. In a manner inspired by philosopher of science Ian Hacking and by historian Reinhart Koselleck, historical analysis emphasizes the description of the birth, development, and use of concepts. Drawing on the work of sociologist Harold Garfinkel, praxiological analysis describes the practical methods used by people to make sense of their environment, to produce their local order, and to act accordingly. The three approaches converge in their insistence on adopting the endogenous/indigenous perspective towards social life and its production.

The Methodology of Legal Philosophy

2016 ◽  
Author(s):  
Alex Langlinais ◽  
Brian Leiter
Keyword(s):  
Conceptual Analysis ◽  
Linguistic Analysis ◽  
Legal Philosophy ◽  
Legal Systems ◽  
Moral Norms ◽  
Social Constructs ◽  
Social Rule ◽  
The Concept Of Law ◽  
The Relationship ◽  
Concept Of Law

This article examines methodological debates in legal philosophy by focusing on two (related) methodological claims in H. L. A. Hart’s 1961 book, The Concept of Law: that Hart’s theory is both general and descriptive, and an exercise in both linguistic analysis and descriptive sociology. It considers what these claims reveal about Hart’s theoretical ambitions and methodological commitments, and what light they shed on debates in legal philosophy since then. In particular, it discusses the most important elements of Hart’s theory, such as the union of primary and secondary rules in law, the “rule of recognition” as a social rule, and the relationship between legal and moral norms. It also explores several objections to Hart’s approach to the problems of legal philosophy, including one that questions the fruitfulness of the methodology of conceptual analysis. Finally, it analyzes the argument of Hart and all legal positivists that legal systems are social constructs.

Practice and Theory in The Concept of Law

2021 ◽  
pp. 1-31
Author(s):  
Thomas Adams
Keyword(s):  
Conceptual Analysis ◽  
Practice Theory ◽  
Legal Philosophy ◽  
Legal Rules ◽  
The Concept Of Law ◽  
Concept Of Law

This chapter challenges the widely held assumption that H.L.A. Hart endorsed a fatally flawed theory of rules known as ‘the practice theory’. In the first section I lay out the practice theory. The second section marshals evidence of the theory’s inconsistency with central aspects of Hart’s understanding of law, in particular his insistence on the distinction between the validity and efficacy of legal rules. In Section 3 I revisit the passages of The Concept of Law from which the practice theory is ostensibly culled and suggest an alternative. Finally, in Section 4, I consider some of the methodological implications of Hart’s style of argument and what it says about the importance or not of conceptual analysis in legal philosophy.

Theory Characteristics of the Features of Law that Express its Positive Essence

2020 ◽  
Vol 9 (3) ◽  
pp. 921
Author(s):  
Andriy I. LUTSKYI ◽  
Myroslav I. LUTSKYI ◽  
Roman P. LUTSKYI
Keyword(s):  
Internal Structure ◽  
Legal Consciousness ◽  
Key Factors ◽  
Scientific Thought ◽  
Content Structure ◽  
Positive Law ◽  
The Concept Of Law ◽  
Correct Understanding ◽  
Concept Of Law

Nowadays, scientific thought pays little attention to coverage of the essence of such features of law as systematicity and universality. They are the ones that cover the internal structure of appointment and the role of such a category as ‘positive law’. The essential features of positive law reflect the central formula of this category, which reflects the quintessence of the concept of ‘law’. The term ‘positive law’ means a rule of conduct that is accepted and sanctioned by the state and is universally binding. The purpose of the paper is to determine the essence and features of positive law based on a correct understanding of the features that describe this phenomenon, as well as are key factors in legal consciousness. The essential features of positive law presented in the paper reflect the central formula of this category, which reflects the quintessence of the concept of ‘law’; this formula can be supplemented and modified, but it cannot be left out without compromising the full coverage of the content, structure, and mechanism of law.

scholarly journals Doctrinal features of positive law

2020 ◽  
Vol 11 (11) ◽  
pp. 52-56
Author(s):  
Lutsky R. Р.
Keyword(s):  
Social Life ◽  
The State ◽  
State System ◽  
Underlying Structure ◽  
Legislative Process ◽  
Legal Norms ◽  
Positive Law ◽  
Stage Of Development ◽  
State Coercion ◽  
The Concept Of Law

Research of term a law is conducted already long time. However sufficiently small attention is spared to opening сутності of signs, that expose the underlying structure of setting and role of such category as a «positive law». The сутнісні signs of positive law represent the central formula of this category, quintessence of concept «law» is represented in that. A term «positive law» expresses by a soba rule of behavior, that is accepted and it is sanctioned by the state and has obligatory character . In addition a positive law outlines concrete direction of development of legislative process of the corresponding stage of development on that there is the state and exceptionally it in combination with an absolute law is a that instrument that directs development of society and state system. The general theory of positive law, which summarizes the data of analytical jurisprudence, is a self-sufficient legal science, the subject of which is the dogma of law. It is with its «branches» (history of law, comparative law) and in conjunction with the sociology of law, occupies a worthy place in the system of legal sciences, performs in the whole complex of legal knowledge its special and irreplaceable functions of the sphere of law. And positive law is the basis of this theory, and determining the nature and characteristics of this category is crucial to understanding the positive approach to understanding the basics of lawmaking. Рositive law is inextricably linked to state coercion because the very notion of «mandatory legal rules» presupposes the possibility of violating them; positive law. However, in the contemporary realities of world-wide democratization of social life, the binding nature of legal norms is most effectively «supported» not so much by the possibility of applying state coercion for their violation, but by the sociocultural component of their content, which provides the subjects with the awareness of the need for their voluntary and useful implementation in the appropriate form. Тhe essential features of positive law in the article reflect the central formula of this category, which reflects the quintessence of the concept of «law»; this formula can be supplemented and modified, but it cannot be without prejudice to the disclosure of the content, structure and mechanism of action of law. Keywords: dogma, law, signs of law, positive law, society, state, system, obligatoryness, state compulsion.

scholarly journals Problematyka aksjologiczna jako uwarunkowanie procesów prawodawstwa gospodarczego oraz jego limitacji. Zagadnienia filozoficzno-prawne

2013 ◽  
pp. 37-72
Author(s):  
Anna Kociołek-Pęksa
Keyword(s):  
Economic System ◽  
Social Life ◽  
Economic Activities ◽  
Economical Analysis ◽  
Positive Law ◽  
The Social ◽  
The Status ◽  
Effective Instrument ◽  
The Law ◽  
The Concept Of Law

The dissertation substantiates the possibility of applying the idea of law as a tool for defining the limits of legal interference in an economic system. Adopting the concept of law based on the Economical Analysis of Law it advocates the belief that the implementation of the idea of law consisting of three values – advisability, justice and legal safety – is the most optimal and effective instrument in determining the limits of legal regulations with regard to a liberal market economy. One can conclude then, that the idea of law can very well be described as a general cultural axiological system, especially with regard to the economic and legal culture. It is a system of values that determines the processes of internalization and institutionalization of norms and above all legal and moral ones. The law is a factor that determines and organizes the social life and it determines for the same reason the art and limits of economic activities. It cannot therefore be enacted in isolation from economic and axiological questions. As Gustav Radbruch observes, the law, as well positive as the natural law is a cultural phenomenon and can be looked into only in connection with values and always with reference to them. The positive law must embody and implement the idea of law. And although it is indisputable that no ideal legal or economic system can be completely fulfilled, the striving toward those ideals is an obligation for any society. Resigning and giving up the ideal does not simply mean the preservation of the status quo, but it results in regression and in repeating of former dysfunctions and/or other negative solutions.

scholarly journals Komu służy prawo? Libertariańska koncepcja Alberta Jaya Nocka

2021 ◽  
Vol 30 (4) ◽  
pp. 225
Author(s):  
Olgierd Górecki
Keyword(s):  
Natural Law ◽  
First Generation ◽  
The State ◽  
Positive Law ◽  
The Government ◽  
The Concept Of Law ◽  
Object Of Study ◽  
The Individual ◽  
The Relationship ◽  
Concept Of Law

<p>Albert Jay Nock (1870–1945) was a prominent opinion journalist of the first half of the 20<sup>th</sup> century, considered a representative of the first generation of libertarianism. The article is aimed at finding an answer to the question: Whom – according to Nock – does law serve? A key element of the problem is the internal dichotomy of the concept of law, which not only can be seen through the prism of the positivist-legal paradigm, but also constitutes the pillar of the jusnaturalistic concept. To properly arrange the object of study, the thesis was used according to which in Nock’s doctrine the existence of radically different assessment of the nature of man and his individual goals from the nature of the functioning of the State allows us to demonstrate the dichotomy of two opposing legal orders that serve the welfare of different entities (the individual and the State). To systematize the argument, the concept of the individual and his relations with the State was first presented, and then the dichotomy of the government and the State was discussed, which ultimately finally allowed to analyze the relationship between natural law and positive law.</p>

Legal Scholarship

2018 ◽  
Author(s):  
Jan Schröder
Keyword(s):  
Roman Empire ◽  
Early Modern Period ◽  
Holy Roman Empire ◽  
Positive Law ◽  
Legal Literature ◽  
German Nation ◽  
The Concept Of Law ◽  
Developmental Phases ◽  
Legal Methodology ◽  
Concept Of Law

The contribution is about the development of the concept of law, and the theory of legal sources and methods in the early modern period. The chapter builds on continental legal literature, with emphasis on the Holy Roman Empire of the German nation. The author distinguishes two developmental phases: 1. the period from 1500 to 1650, which covers the era of humanism, and 2. the era of the Enlightenment from 1650 to 1800. From the first period to the second, the concept of law changes. Until c.1650, in order to be in force law had to be rightful and acceptable. From the mid-seventeenth century onwards, positive law depended on the will of the lawgiver only, while natural law evolved into a complete embodiment of rational law. The chapter demonstrates the influence, which the change in the concept of law had on specific parts of legal methodology.

Law and Protestantism in Denmark

2016 ◽  
Vol 102 (1) ◽  
pp. 406-418
Author(s):  
Ditlev Tamm
Keyword(s):  
Criminal Law ◽  
Marriage Law ◽  
The Reformation ◽  
The Law ◽  
The Concept Of Law ◽  
The Church ◽  
Concept Of Law ◽  
Catholic Bishops

Abstract This contribution deals with the influence of the Reformation on the law in Denmark. The Reformation was basically a reform of the church, but it also affected the concept of law and state in general. In 1536, King Christian III dismissed the catholic bishops and withheld the property of the church. The king, as custos duarum tabularum, guardian of both the tablets of law, also took over the legislation for the church. Especially in subjects of morals and criminal law new principles and statutes were enacted. Copenhagen University was reformed into a protestant seminary even though the former faculties were maintained. For that task Johannes Bugenhagen was summoned who also drafted the new church ordinance of 1537. In marriage law protestant principles were introduced. A marriage order was established in 1582.

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