Legal positivism

Norberto Bobbio's Legal Theory and Kelsen's Heritage

by Mario Ricciardi

paper presented at the Department of Philosophy, The University of Manchester, December 1995

Pragmatism and Legal Reasoning

by Narve Strand

Jurisprudence for Foxes

by Leslie Green

forthcoming in the International Journal of Constitutional Law

This paper contests Brian Simpson's claim that HLA Hart's book, The Concept of Law, is that of a 'hedgehog', that is,... more This paper contests Brian Simpson's claim that HLA Hart's book, The Concept of Law, is that of a 'hedgehog', that is, a monistic thinker. It is not. Hart's work is pluralist both in its explanatory concepts and in its evaluative background. Some conjectures are offered as to why Simpson so misunderstood Hart, and as to why analytic legal philosophy is misunderstood, or distrusted, more generally.

Reason-Giving and the Law

by David Enoch

history and the characterization of law - draft

by John Lunstroth

If what is important in our affairs is that we know the truth, then are there present things about which we must know... more If what is important in our affairs is that we know the truth, then are there present things about which we must know the past in order to know the truth?

I argue there are, and that one category of those things is legal things, the law. By law I mean political theory, justice, right, rights, positive law and ethics; and all of the various ways those things have been understood by jurists.

The way we reason about the law radically changed in the Enlightenment. By the end of the 18th century science and positivism as general methods of reason had refracted the unity of law into a scientific part and a prudential part, laws of nature and natural law. The natural law part consisted of various concepts that were then each understood to exist independently of the others: morality, positive law, political theory, justice, ethics, etc. In the aftermath positivism dominated the way law was understood. In positivism law is opposed to morality, a categorical term into which all of the prudential concepts are reduced. The prudential fragments also underwrote the development of the social sciences, and operationalized the development of ideology/critique (e.g., Marx, Nietzsche, Freud, Foucault) and the relativization of political values.

Any discussion of a fragment of law must include discussion of the other fragments if the Right or truth of the law is to be understood. Positivism, a fragment, is inherently incomplete as an understanding of the law, and its incompleteness mandates that if truth about the law is sought, then it must be sought in the holistic vision of law.

I generalize to argue that any argument about living things that touches, traverses or occurs after the Enlightenment must take into account the changed nature of historical space originating in the Enlightenment. Nothing in post-Enlightenment historical space, especially legal/moral things, can be taken at face value, including positivism and the US Constitution. We must strive to reassemble or revision Right for an age in which positivism is the best tool of ideology, and the dominant ideologies serve oligarchic ends.

"A rule-governed gunman writ large?" Il posto della coercizione in The Concept of Law.

by Anna Pintore

Since Hart’s critique of Austin and Kelsen, many legal scholars have been eager to deny that the coercive character of... more Since Hart’s critique of Austin and Kelsen, many legal scholars have been eager to deny that the coercive character of law is a relevant object of enquiry for legal philosophers. Against the mainstream, Pintore argues non only that coercion must be still deemed as a basic theme of legal philosophy, but also that it plays a pivotal role in The Concept of Law. There it surfaces, firstly, in Hart’s theory of social rules and obligations; second, in his analysis of legal systems as a union of primary and secondary rules; third, in his ideas on the minimum content of natural law.

Philosophie analytique et droits : “le droit à l’enfant” est-il une licorne ?

by Anna C. Zielinska

« Philosophie analytique et droits : “le droit à l’enfant” est-il une licorne ? », Klêsis, numéro spécial : Philosophie analytique du droit, novembre 2011.

For Alasdair MacIntyre, rights resemble unicorns: both are fictional. This intuition applies to the right to have a... more For Alasdair MacIntyre, rights resemble unicorns: both are fictional. This intuition applies to the right to have a child, which is indeed a fiction: it does not exist and is mainly a rhetorical figure. Nevertheless, this observation is fragmentary and thus not satisfying. This article analyses uses of the notion of a “right to a child” and tries to grasp general social challenges underlying it with a help of the interest theory of rights, as opposed to the choice theory. Legal positivism, as it is defended by MacCormick and Raz, helps to rethink the social model (focalised on biological continuity more than on anything else) that allowed the very notion of “right to a child” to emerge, and it provides with tools to transform it.

When, if ever, do citizens have the right to disobey the law?

by Craig Gent

On Political Obligation and the Nature of Law

by Kurt Gerry

Rule of recognition, convention and obligation. What Shapiro can still learn from Hart’s mistakes

by Aldo Schiavello

Shapiro works out a version of legal positivism taking as its starting point Hart’s practice theory of law. Some... more Shapiro works out a version of legal positivism taking as its starting point Hart’s practice theory of law. Some serious limits of Hart’s practice theory of norms concern the conception of legal obligation and normativity of law. In this paper I analyze the limits of Hart’s conception of legal normativity and I appraise whether the planning theory of law indicates the correct direction for overcoming them. To anticipate the conclusion, my effort is to show that Shapiro replicates Hart’s mistakes on this subject-matters. The paper is divided in three main sections. First, I will present briefly a critical reconstruction of Hart’s conception of normativity, reconstruction which is partially different from that given by Shapiro in Legality. I will analize either the original conception of normativity sketched out by Hart in The Concept of Law and the (partially) different conception which can be drawn by the Postscript. Then, I will deepen the conceptions of legal obligation and authority of law associated with the planning theory of law. Few concluding remarks will be devoted to some Shapiro’s assumptions on legal positivism.

On the Nature of Law: Philosophical Anarchism and the Function of Law

by Kurt Gerry

On the Nature of Law: Philosophical Anarchism and Law's Claim to Legitimate Authority

by Kurt Gerry

The Role of Coercion in the Jurisprudence of Hart and Raz: A Critical Analysis

by Kurt Gerry

Between Natural Law and Legal Positivism: Dworkin and Hegel on Legal Theory

by Thom Brooks

Georgia State University Law Review 23(3) (2007): 513-60

In this article, I argue that - despite the absence of any clear influence of one theory on the other - the legal... more In this article, I argue that - despite the absence of any clear influence of one theory on the other - the legal theories of Dworkin and Hegel share several similar and, at times, unique positions that join them together within a distinctive school of legal theory, sharing a middle position between natural law and legal positivism. In addition, each theory can help the other in addressing certain internal difficulties. By recognizing both Hegel and Dworkin as proponents of a position lying in between natural law and legal positivist jurisprudence, we can gain clarity in why their general legal theories seem to fit uncomfortably, if indeed they can be said to fit at all, within so many different camps - while fitting comfortably in no particular camp - as well as highlight what has been overlooked.

Axiology and propositional ethics in the second Carnap: by logical analysis.

by Eidos. Revista de Filosofía de la Universidad del Norte

Eidos, Vol 9 (2009)

La normatividad en la teoría práctica de las reglas

by Roberto M. Jimenez-Cano

El presente trabajo intenta responder al carácter normativo de las reglas sociales a través de la conocida teoría... more El presente trabajo intenta responder al carácter normativo de las reglas sociales a través de la conocida teoría práctica de las reglas de Herbert Hart.

El Derecho como institución social: Searle y Hart

by Roberto M. Jimenez-Cano

El presente trabajo, dando por hecho que el Derecho es una institución social fruto de hechos sociales,analiza los... more El presente trabajo, dando por hecho que el Derecho es una institución social fruto de hechos sociales,analiza los paralelismos entre la teoría institucional de John Searle y la
teoría del Derecho de Herbert Hart

Problemas abiertos de la regla de reconocimiento

by Roberto M. Jimenez-Cano

El presente artículo, partiendo de la concepción de
la teoría práctica de las reglas y, en cocnreto, de la more El presente artículo, partiendo de la concepción de
la teoría práctica de las reglas y, en cocnreto, de la
regla de reconocimiento de Herbert Hart, trata de
abordar dos problemas iusfilosóficos fundamentales
que aún hoy quedan abiertos en el estudio de la
regla de reconocimiento, los cuales afectan tanto a
sus posibilidades de existencia como a su viabilidad
como instrumento normativo. Así, y a pesar de
apuntar algunas otras cuestiones, se abordará, por
un lado, la viabilidad conceptual de una regla de
reconocimiento que incorpore criterios morales de
validez y, por otro, los diferentes enfoques desde los
que se puede entender que una regla de
reconocimiento es una regla obligatoria.

The Natural Law Challenge to Choice of Law

by Perry Dane

Would a jurisdiction supremely confident that some or all of its own municipal law rests on natural law and universal... more Would a jurisdiction supremely confident that some or all of its own municipal law rests on natural law and universal legal truth ever have a good, purely principled, reason to look to ordinary choice of law principles and apply the substantive law of another place in a case involving foreign elements? This essay, a chapter in an upcoming volume on “The Role of Ethics in International Law,” suggests several such reasons, some of them grounded in the natural law tradition itself and in sustained analysis of the relationship between natural law (if such a thing exists) and positive law. The essay also suggests at least a rough analogy between the jurisprudential challenges of choice of law and the theological challenges of interreligious encounter. It ends with a short effort apply the general argument to the specific question of the inter-jurisdictional recognition of same-sex marriages.