Law and Public Reason

This chapter provides an account of Hegel’s conception of the law and of the law’s realization within Civil Society and the State. It is argued that Hegel is a legal positivist because he holds that right is binding only when it has been promulgated as law, and that law can be valid even if it does not measure up to the standard of right. The chapter gives an account of Hegel’s contextualism and shows that he is committed to an essential but limited role for philosophy in determining the content of the law. Ultimately Hegel’s view is best understood as a public reason conception of the rationality of law. The court system is a prototype of public reason in that its goal is to guarantee standards of evidence and publicity in a setting of mutual recognition. The chapter argues that Hegel does believe in the need for a written constitution, and that his view of the legislative power is a further elucidation of public reason based on the idea of representative interests.

4. Modern legal positivism

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.

Common ground and grounds of law

A central premise of Ronald Dworkin’s famous Argument from Theoretical Disagreement is that judges regularly disagree about the grounds of law. The occurrence of these so-called ‘theoretical disagreements’, it is argued, cannot be explained by the influential legal positivist theory of HLA Hart according to which the grounds of law are constituted by judicial consensus. However, in his attempt to show that theoretical disagreements actually exist Dworkin primarily relies on the occurrence of judicial disagreements about legal interpretation, as he takes them to be disagreements about the grounds of law. In this article, I will argue that these interpretive disagreements do not pose a problem for Hartian positivism. My argument will rely on standard work from the field of pragmatics which provides sophisticated explanations of how the interpretation of linguistic texts, such as legal documents, works. On the model that I will propose, interpretive disagreements concern the meaning that the legal authorities who enacted the document intended to get across and these disagreements arise from diverging assumptions about the context in which these documents were enacted. I will argue that disagreements about intentions and contextual presumptions do not concern the grounds of law and therefore do not threaten Hartian positivism.

The Ontological Basis and Justification of Law

This paper responds to the linchpin and central problem of jurisprudence in all its variants (legal schools) which is the task of establishing the meaning, nature and validity of law. The notion of validity and obligation is not only crucial to the concept of law, but also essentially inalienable. In the naturalist perception of law as well as in the positivist explication of law, the notion of validity is given fundamental attention. However, the point of disagreement or conflict, between legal naturalism and legal positivism (which are the two most outstanding and contending legal thoughts) revolves around the question: Where exactly does or from where does the law acquire its obligatory or binding or legal force? Differently put, in what does the validity of the law subsists? What invests a legal stamp or seal on a piece of legislation? Or what confers legality on legal norms that justifies and commands their obedience? While the naturalist appeal to some extra-legal, moral and metaphysical elements as the foundation of the binding force and validity of law (the oughts), the legal positivist took a formal and empirical approach to the explanation of the obligation and validity of law (law as it is, without recourse to metaphysical or moral oughts, is valid and commands unconditional obedience). Consequently, as an attempt towards establishing the ontological nature and justification of law, this paper defends the naturalist jurisprudence. The paper argues that to properly configure the true nature of positive laws otherwise called the jurisprudential laws in relation to law per se, the philosopher transcend the formalistic and materialistic study of law (empirical and descriptive) to the transcendental (prescriptive) examination of law not just in its ontological descriptive dimension, but most essentially in relation to its normative or prescriptive form. In lieu, the paper further argue that consequent upon the prescriptive nature of the law of nature, and the concomitant rational nature of man, positive laws cannot but inexorably be morally biased. The methods adopted by the research include the expository analytic and prescriptive methods.

The legal consequences of jus cogens and the individuation of norms

International 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.

Judicial Marxism

This article discusses the “judicial marxism”, which was characterized by the actuation of judges who have learned their ideology among student movements and labor unions. Brazilian Labor Justice was created in the 40s, but the true Labor Law charismatic founders were the hyper politicized generation of labor judges, stood out in the 80s and the 90s, when Marxist labor judges held their position, in the field, against the traditional view of a neutral and impartial judge in the Montesquieu style. It’s known that judges who are politically oriented to Marxism produce “garantist” discourses (in Ferrajoli´s sense) when they utter a speech in legal terms (in their opinions), referring to the fundamental labor rights doctrine – which is based on the concept of dignity of work. However, sometimes “labor garantism” and “Marxism” don’t coincide in attitudes of the same labor judges because it’s not necessary that garantist judges have both the humanistic education and the political initiation in their backgrounds. The truth is that Marxism and garantism can live together, once we recognize that the prior is a political and philosophical doctrine, effective only in the political field, but never into the legal field, while the later is a major philosophical theory especially applied to law issues. By the 2000s, elder Marxist judges were challenged by a younger generation of hyper technicist magistrates formed at the benches of the career preparatory courses. By asserting the autonomy of the juridical discourse, rather than the political ideology, these legal positivist judges (in Kelsen´s sense), so called “professional jurists”, partially delegitimized the judicial activism, particularly relevant in Brazilian Labor Courts. Nowadays, Judicial Marxism faces a crisis, losing space to pure garantist and legal positivist judges, although it still holds a formidable aura of legitimacy because it’s the only labor law tradition that deeply justifies the “protective principle”, by assuming the class struggle theory as a main postulate.