scholarly journals Development of English Legal Positivism from Bentham to Salmond and Brown: Leading Ideas in the Context of the Common Law Tradition

wisdom ◽  
2021 ◽  
Vol 1 (1) ◽  
pp. 159-167
Author(s):  
Anton MIKHAILOV ◽  
Viktor BESPALKO ◽  
Anastasia KORZHENYAK
Keyword(s):  
Common Law ◽  
Legal Positivism ◽  
Legal Consciousness ◽  
Positive Law ◽  
American Tradition ◽  
The Common ◽  
Anglo American ◽  
The Concept Of Law ◽  
Theory Of Law ◽  
Historical Trajectory

This article examines the peculiarities of the evolution of English legal positivism, which was the only direction of understanding law formed by professional lawyers, expressing the specifics of their legal consciousness, focused on understanding positive law and the practice of its implementation. The authors examine the key concepts that define the historical trajectory and problem field of legal positivism in the Anglo-American tradition, analyzing the legal teachings of T. Hobbes, D. Hume, J. Bentham, J. Austin, M. Hale, W. Blackstone, J. W. Salmond and W. J. Brown. The attention is drawn to the fact that Salmond lays down objections to the concept of law as a rule of the state and considers its main shortcomings. In his work “Jurisprudence or the Theory of Law”, Salmond presents the flaws and omissions of the “imperative theory of law”, among the proponents of which he names T. Hobbes, S. von Pufendorf, J. Bentham and J. Austin. Brown believes that the essence of law can be expressed by a set of three concepts: “will”, “command” and “reason”, and the just conception of law implies recognition of the elements of unity, growth and growth that is consciously directed towards the realization and achievement of the goal.

Property

2011 ◽  
Author(s):  
David Schmidtz
Keyword(s):  
Property Rights ◽  
Common Law ◽  
Legal Rights ◽  
Legal Cases ◽  
American Tradition ◽  
The Common ◽  
Anglo American ◽  
Bundle Of Rights ◽  
The Right ◽  
The Universe

Working within a Lockean tradition, William Blackstone characterized property as the “sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” In practice, though, property rights in the Anglo-American tradition have always been hedged with restrictions. Today, the term “property rights” generally is understood to refer to a bundle of rights that could include rights to sell, lend, bequeath, use as collateral, or even destroy. However, the fact remains that at the heart of any property right is a right to say no: a right to exclude non-owners. Claims about natural rights and natural law concern what legal rights ought to be, not what legal rights happen to be. This article discusses several legal cases illustrating the sorts of principles that drive the evolution of the common law of property. It also considers externalities, possession, positive-sum games, transaction costs, justice, zoning, and equality before the law.

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.

scholarly journals About John Austin’s Analytical Jurisprudence: The Empirical-Rationalist Legal Positivism

2021 ◽  
Vol 21 (1) ◽  
pp. 242-261
Author(s):  
Damir Banović
Keyword(s):  
Legal Positivism ◽  
Contemporary Theory ◽  
Moral Principles ◽  
Positive Law ◽  
General Utility ◽  
Theoretical Approaches ◽  
Theory Of Law ◽  
The 19Th Century ◽  
Further Development ◽  
Descriptive Method

Summary This article deals with analytical jurisprudence topics presented in John Austin’s work, his predecessors, and its influence on the contemporary theory of law. The article analyses his analytical method, understanding of what the method implies, and its application in understanding law as a social phenomenon. Not only does the article analyse the law phenomenon, but it also presents his views on similar phenomena in law, such as international and constitutional law, the phenomenon of sovereignty and a sovereign, and the principle of general utility as one of the moral principles. His theory of law was one of the most significant theoretical approaches in England of the 19th century, and also constituted the baseline for new conceptions and the basis of critical analyses of later positive law theories. Moreover, his work provides a solid ground for explanations of individual branches of law, especially criminal law. Finally, the article also presents a critical analysis of his approach, useful and important findings, and the perspectives for further development of the theory of law, especially in the domain of his analytical, empirically oriented and descriptive method.

Planning Positivism and Planning Natural Law

2012 ◽  
Vol 25 (1) ◽  
pp. 219-235 ◽  
Author(s):  
Martin Jay Stone
Keyword(s):  
Present State ◽  
Natural Law ◽  
Legal Positivism ◽  
Planning Theory ◽  
Positive Law ◽  
Theory Of Law

Scott Shapiro offers an elaboration and defense of “legal positivism,” in whichthe official acceptance of a planfigures as the central explanatory notion. Rich in both ambition and insight,Legalitycasts an edifying new light on the structure of positive law and its officialdom. As a defense of positivism, however, it exhibits the odd feature that its main claims will prove quite acceptable to the natural lawyer. Perhaps this betokens – what many have begun to suspect anyway – that our usual tests for classifying legal theories (as positivist or not) are, in the present state of discussion, no longer credible. In any case, my hope in the following remarks is to suggest how certain ambiguities inLegalitymight easily be resolved in favor of PlanningNatural Law. The Planning Theory of Law, in other words, is not proprietary to positivism.

Boundaries of Criminal Liability: Participation in Crime, Preparatory Offences and Omissions

2020 ◽  
Vol 53 (3) ◽  
pp. 392-408
Author(s):  
Miriam Gur-Arye
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
Review Essay ◽  
Criminal Liability ◽  
Common Law ◽  
Civil Law ◽  
Legal Rules ◽  
Core Concepts ◽  
The Common ◽  
Anglo American

The book Core Concepts in Criminal Law and Criminal Justice: Anglo-German Dialogues is the first volume of an Anglo-German project which aims ‘to explore the foundational principles and concepts that underpin the different domestic systems and local rules’. It offers comparative perspectives on German and Anglo-American criminal law and criminal justice as ‘examples of the civil law and the common law worlds’. The comparisons ‘dig beneath the superficial similarities or differences between legal rules to identify and compare the underlying concepts, values, principles, and structures of thought’. The review essay focuses on the topics of omissions, preparatory offences, and participation in crime, all of which extend the typical criminal liability. It presents the comparative German and Anglo-American perspectives discussed in the book with regard to each topic and adds the perspective of Israeli criminal law. It points out the features common to all these topics as an extension of criminal liability and discusses the underlying considerations that justify the criminalisation of omissions, preparatory offences, and participation in crime. In evaluating whether extending criminal liability in these contexts is justified, the review essay suggests reliance on two main notions: that of ‘control over the commission of the offence’ and that of ‘liberty (or personal freedom)’.

Fundamental Conceptions of International Law in the Jurisprudence of the Permanent Court of International Justice

1936 ◽  
Vol 30 (3) ◽  
pp. 414-438 ◽  
Author(s):  
H. Arthur Steiner
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Current Practice ◽  
Common Law ◽  
International Justice ◽  
Large Measure ◽  
American Law ◽  
The Common ◽  
The Law ◽  
Anglo American

Even in the most highly formalized systems of jurisprudence the rules and practices of the law cannot be entirely separated from the fundamental conceptions of law underlying them. The legal systems of France, The Netherlands and Germany have not been formalized to so great an extent that there is neither occasion nor opportunity for the application of the law to be conditioned by concepts derived from juridical theory. Duguit and Geny, Krabbe, and Kohler and Stammler, in their various works, have made this quite clear. In Anglo-American law the fictions so abundantly found are often no more than concrete formulations of abstract fundamental concepts which judges have thought to be valid and consistent with policy and which they could not conveniently introduce into the law in any other way. That fundamental conceptions of the law may affect its development more than their logical consistency warrants has been amply illustrated in the common law, equity, and American constitutional law. What is true of well-developed systems of jurisprudence is no less true of international law. Fundamental conceptions have probably had a greater influence here, since theologic and scholastic philosophies explain many of the rules of modern practice, and the rules of current practice owe their very existence, in large measure, to the reconciliaation of the philosophical concepts of the State, sovereignty and independence with the conception of a community of nations and a rule of law.

Our Lady the Common Law: An Anglo-American Legal Community, 1870-1930

1988 ◽  
Vol 93 (5) ◽  
pp. 1298
Author(s):  
Tony Freyer ◽  
Richard A. Cosgrove
Keyword(s):  
Common Law ◽  
The Common ◽  
Anglo American
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