Interpretivism in Jurisprudence: What Difference Does the Philosophy of History Make to the Philosophy of Law?

2007 ◽  
Vol 1 (3) ◽  
pp. 365-393
Author(s):  
Naomi Choi
Keyword(s):  
Philosophy Of History ◽  
Legal Positivism ◽  
Legal Authority ◽  
Philosophy Of Law ◽  
Historical Interpretation ◽  
Interpretive Theory ◽  
Legal Positivist ◽  
Points Of View ◽  
Theory Of Law ◽  
Positivist Approach

AbstractTo answer the question of what difference the philosophy of history makes to the philosophy of law this paper begins by calling attention to the way that Ronald Dworkin's interpretive theory of law is supposed to upend legal positivism. My analysis shows how divergent theories about what law and the basis of legal authority is are supported by divergent points of view about what concepts are, how they operate within social practices, and how we might best give account of such meanings. Such issues are widely debated in the philosophy of history but are often overlooked in jurisprudential circles. When the legal positivist approach to meanings is contrasted with Dworkin's interpretivism it is clear that what is needed is an alternative to both, in the form of what we might call "historical meanings" and "historical interpretation". While Dworkin's interpretivism gets it right that legal positivism is an inadequate philosophy of law to the extent that it is committed to a "criterial semantics" view of concepts, this paper argues that post-positivism in the philosophy of law need not entail a normative jurisprudence, as Dworkin would have it.

Ambivalent assimilation

2006 ◽  
Vol 68 (2) ◽  
pp. 336-340
Author(s):  
David A. J. Richards
Keyword(s):  
Legal Positivism ◽  
Legal Philosophy ◽  
Ethical Criticism ◽  
Philosophy Of Law ◽  
Social Rules ◽  
Philosophical Inquiry ◽  
Theory Of Justice ◽  
Truth Claims ◽  
The Concept Of Law ◽  
Theory Of Law

Legal philosophy as a discipline, was, at best, a marginal topic of philosophical inquiry before H. L. A. Hart turned his attention to it. It may be said of Hart that no philosopher after Hart's work in the philosophy of law could ever reasonably regard legal philosophy as marginal again. Before Hart, legal positivism had, of course, its important advocates, but Hart's The Concept of Law showed that its earlier proponents had been wedded either to a command theory of law that was clearly indefensible (Hobbes, Bentham, and Austin) or a conception of norms that was inadequately defended (Kelsen, Hagerstrom, Alf Ross). In the place of the foundational concepts of command or norm, Hart rigorously defended a sociologically informed account of the operation of legal systems (marked by certain indicia of observance and acceptance) and an illuminating distinction between primary and secondary rules that explained important distinctions in law, for example, between the criminal and civil law and the constitutional law establishing the scope and limits of the competence of officials. On this basis, Hart offered an account of law as a subset of social rules, marked by its monopoly of coercive power over a well-defined territory and the finality of its authority over matters involving the scope and limits of such power. Since truth claims about law are made on the basis of ascertaining such rules, determined by observance and acceptance, such claims in law truthfully can be and are made without knowing whether such rules are substantively just according to a philosophically defensible theory of justice. For this reason, Hart argued that legal positivism is the better philosophy of law, since law can be known without knowing its justice, and positivism makes clear the responsibility of independent ethical criticism of law's sometime amorality and immorality. No one after Hart wrote about these matters, would ever think of law in the same way, and the case for legal positivism, as a philosophy of law, had been placed on an altogether sounder philosophical basis.

On The Pure Theory of Law

1966 ◽  
Vol 1 (1) ◽  
pp. 1-7 ◽  
Author(s):  
Hans Kelsen
Keyword(s):  
Social Order ◽  
Fundamental Difference ◽  
Legal Order ◽  
Legal Positivism ◽  
Legal Authority ◽  
Pure Theory ◽  
Legal Norms ◽  
Specific Meaning ◽  
The Law ◽  
Theory Of Law

The Pure Theory of Law is a theory of positive law, not of a definite legal order, but of the law in general. It is a general theory of law. As such it is the most consistent version of that school of jurisprudence which is called legal positivism because it considers as “law” only positive law and refuses to recognize as law any other normative social order even if, in the usage of language, it is called “law”, as e.g. so-called “natural law”.Law is—according to the Pure Theory of Law—by its very nature a definite type of norm. As a “norm” the law is the specific meaning of an act of will directed at a definite human behavior. This meaning is: that men ought to behave in a certain way. Hence an essential presupposition of the Pure Theory of Law as a positivistic theory is the recognition of the fundamental difference between the “ought” and the “is”, between norms and assertions. Assertions describe a certain object; they are true or false; norms are not describing, but prescribing; they are neither true nor false; they are valid or non-valid. Hence it is necessary to distinguish as clearly as possible between legal norms established by the legal authority, and assertions of the science of law about legal norms, the sentences by which this science describes its object.

The History and Foundations of Criticism of H.L.A. Hart’s Legal Positivism in R. Dworkin’s Philosophy of Law

2019 ◽  
Vol 62 (7) ◽  
pp. 124-142
Author(s):  
Sofya V. Koval
Keyword(s):  
Legal Positivism ◽  
Legal Rights ◽  
Philosophy Of Law ◽  
American Philosophy ◽  
Rules And Principles ◽  
History Of ◽  
Competing Models ◽  
Anglo American ◽  
The Concept Of Law ◽  
Theory Of Law

The paper discusses the Anglo-American philosophy of law of the 20th century, more specifically the philosophy of law of Ronald Myles Dworkin and his criticism of the legal positivism of Herbert Lionel Adolphus Hart. The author presents the history of the criticism of legal positivism in Ronald Dworkin’s philosophy of law and distinguishes historical stages. The subject of the study is the critique of legal positivism but not the Hart-Dworkin debate itself, well known in Western philosophy of law. The reason is that the discussion was conducted between Dworkin and Hart’s supporters but not between Dworkin and Hart by himself. The latter responded to the criticism only after twenty seven years. The article explains why Dworkin chose for his criticism Herbert Hart’s version of legal positivism. This is due to the fact that Dworkin highly appreciated Hart’s positivist theory of law and characterized it as the “most clear.” The article presents the methodological foundations of criticism of Hart’s legal positivism in Dworkin’s philosophy of law. It reveals a methodological divergence between the two legal theories, which directly affects the understanding of the concept of law and its content. Therefore, we can assume that the legal theories of Hart and Dworkin are two competing models of law: Dworkin’s model considers law as a set of rules and principles and Hart’s model acknowledges only rules and court decisions as a source of law. The article also presents the key principles of positivism criticized by Dworkin. These principles, firstly, interpret law as a set of legal rules determined through a special legal criterion, secondly, provide the judge with an opportunity to make a decision “at his own discretion” in a situation not regulated by law, and, thirdly, recognize only legal rights and obligations enshrined in legal regulations. It is important to note that in this article the author describes criticism as an independent phenomenon of legal philosophy with a particular focus on the history and foundations of this phenomenon.

Hart, Herbert Lionel Adolphus (1907–93)

2018 ◽  
Author(s):  
Neil MacCormick
Keyword(s):  
Analytical Approach ◽  
Legal Positivism ◽  
Jeremy Bentham ◽  
Philosophy Of Law ◽  
Social Rules ◽  
Oxford University ◽  
Moral Qualities ◽  
Theory Of Law ◽  
Outstanding Representative ◽  
John Austin

H.L.A. Hart, Professor of Jurisprudence at Oxford University, 1952–1968, is an outstanding representative of the analytical approach in jurisprudence and philosophy of law. He restated ‘legal positivism’ in the tradition of Jeremy Bentham and John Austin, differentiating between law’s existence and its moral qualities. But he rejected the Benthamite identification of law with a sovereign’s commands, advancing instead a theory of law as comprising a special, systematically organized, kind of social rules. He did this in a linguistic-analytical style, showing how attention to our way of speaking and thinking about rules can yield new insights into their nature.

Romans 8: Dead to the Law, Alive in the Spirit

2013 ◽  
Vol 9 ◽  
Author(s):  
Tyler Lohse
Keyword(s):  
Case Law ◽  
Legal Interpretation ◽  
Philosophy Of Law ◽  
Interpretive Theory ◽  
The Law ◽  
Interpretive Strategies ◽  
Civil Death ◽  
Romans 8

This essay comments on the nature of the language of the law and legal interpretation by exam- ining their effects on their recipients. Two forms of philosophy of law are examined, legal positiv- ism and teleological interpretive theory, which are then applied to their specific manifestations in literature and case law, both relating to antebellum slave law. In these cases, the slave sustains civil death under the law, permissible by means of these legal interpretive strategies.

THEORY OF LAW AND PHILOSOPHY OF LAW AS THEORETICAL DISCOURSES: SPECIFICS AND RELATIONSHIP

2020 ◽  
pp. 9-17
Author(s):  
Вадим Леонидович Афанасьевский
Keyword(s):  
Scientific Knowledge ◽  
Scientific Theory ◽  
Theoretical Concept ◽  
Philosophy Of Law ◽  
The West ◽  
Scientific Creativity ◽  
Key Characteristics ◽  
Different Types ◽  
Theory Of Law ◽  
The Relationship

В статье анализируется проблема взаимоотношений философии права и научной теории права. Рассматриваемая проблема стала особенно актуальной в российском образовательном пространстве в связи с введением после длительного перерыва в государственный образовательный стандарт магистратуры по юриспруденции учебной дисциплины «Философия права». Автор статьи в качестве базисного принимает тезис, согласно которому философия права, являясь сферой философской мысли, и теория права как область научного социогуманитарного знания представляют собой разные типы теоретического дискурса. Исходя из этого, в статье выстраивается теоретическая концепция, согласно которой задачей философии права как философского типа мышления является конструирование или экспликация онтологических, эпистемологических, аксиологических, феноменологических оснований для формирования и функционирования научных теоретико-правовых и историко-правовых построений. Для реализации поставленной в статье задачи подробно рассматриваются ключевые характеристики как теории философского типа, так и идеалов, норм и характеристик научного знания. Выявленное различие экстраполируется на взаимоотношение теории права как продукта научного творчества и философии права как конструкции, задающей базовые мировоззренческие смыслы. В качестве примера выработанных философией права и государства оснований научных теорий прогресса, государства, морали и права, автор приводит взгляды мыслителей западноевропейской философской классики: Т. Гоббса, Ж.-Ж. Руссо, И. Канта, Г.В.Ф. Гегеля. Именно их философские концепции предопределили образы теоретико- и историко-правовых учений XVIII, XIX, XX и даже начала XXI в. Таким образом, отношение философии права и теории права выстраивается по «вертикали»: от онтологического основания к возведению теоретико-правовых и историко-правовых научных построений. The article analyzes the problem of the relationship between the philosophy of law and the scientific theory of law. The problem under consideration has become especially urgent in the Russian educational space in connection with the introduction of the Philosophy of Law discipline master's degree in law after a long break. The author of the article takes as the basis the thesis that the philosophy of law, being the sphere of philosophical thought, and the theory of law as a field of scientific socio-humanitarian knowledge are different types of theoretical discourse. Based on this, the article builds a theoretical concept according to which the task of the philosophy of law as a philosophical type of thinking is the construction or explication of ontological, epistemological, axiological, phenomenological grounds for the formation and functioning of concrete scientific theoretical and legal and historical and legal constructions. To implement the task posed in the article, the key characteristics of both a theory of a philosophical type and ideals, norms and characteristics of scientific knowledge are examined in detail. The revealed difference is extrapolated to the relationship between the theory of law as a product of scientific creativity and the philosophy of law as a construction that sets basic philosophical meanings. As an example of the foundations of the scientific theories of progress, state, morality and law developed by the philosophy of law and the state, the author gives the views and thinkers of the West European philosophical classics T. Hobbes, J.-J. Russo, I. Kant, G.V.F. Hegel. It was their philosophical concepts that predetermined the images of theoretical and historical-legal doctrines of the XVIII, XIX, XX and even the beginning of the XXI centuries. Thus, the attitude of the philosophy of law and the theory of law is built along the «vertical»: from the ontological foundation to the construction of theoretical and historical and historical legal scientific constructions.

On the Artifactual—and Natural— Character of Legal Institutions

2018 ◽  
Author(s):  
Corrado Roversi
Keyword(s):  
Natural Law ◽  
Common Ground ◽  
Legal Positivism ◽  
Legal Institutions ◽  
Human Beings ◽  
Legal Realism ◽  
Natural Law Theory ◽  
The Law ◽  
Theory Of Law

Are legal institutions artifacts? If artifacts are conceived as entities whose existence depends on human beings, then yes, legal institutions are, of course, artifacts. But an artifact theory of law makes a stronger claim, namely, that there is actually an explanatory gain to be had by investigating legal institutions as artifacts, or through the features of ordinary artifacts. This is the proposition explored in this chapter: that while this understanding of legal institutions makes it possible to find common ground between legal positivism and legal realism, it does not capture all of the insights offered by these two traditions. An artifact theory of law can therefore be necessary in explaining the law, but it will not suffice to that end. This chapter also posits that legal artifacts bear a relevant connection to certain conceptions of nature, thus vindicating one of the original insights behind natural law theory.

Transnational Law and Legal Positivism

2021 ◽  
pp. 970-986
Author(s):  
Michael Giudice ◽  
Eric Scarffe
Keyword(s):  
Legal Positivism ◽  
Original Form ◽  
State Law ◽  
Transnational Law ◽  
Social Fact ◽  
Separation Thesis ◽  
The Social ◽  
Philosophical Account ◽  
Theory Of Law ◽  
Eighteenth And Nineteenth Centuries

This chapter assesses the theoretical adequacy of legal positivism in explanation of several forms and features of transnational law. We suggest that while legal positivism emerged as a philosophical account of state law in the seventeenth, eighteenth, and nineteenth centuries, its connection to state law is best viewed as historical and contingent rather than conceptual and necessary. Among the two core commitments of legal positivism, while the separation thesis requires no modification from its original form, the social fact thesis must be revised and developed to explain the character of transnational law. We also show how the exercise of revising a philosophical theory of law such as legal positivism provides an opportunity to illustrate the continuity between conceptual, empirical, and evaluative studies of transnational law.

LEGAL STATUS OF THE SOLE EXECUTIVE BODY OF A LIMITED LIABILITY COMPANY

2021 ◽  
Author(s):  
Yulia Fanilevna Aitova ◽  
Keyword(s):  
General Theory ◽  
Legal Status ◽  
Limited Liability ◽  
Point Of View ◽  
Limited Liability Company ◽  
Points Of View ◽  
Theory Of Law ◽  
The Individual ◽  
Executive Body

The article analyzes the issue of determining the legal status of the individual management body of a limited liability company. The author begins his research with the concept of legal status existing in the general theory of law, and then proceeds to consider the issue from the point of view of philosophical categories. In addition, the work explores the diversity of points of view existing in the doctrine regarding the legal status of the individual management body of economic societies.

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