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Speech and thought about what the law is commonly function in practical ways, to guide or assess behavior. These functions have often been seen as problematic for legal positivism in the tradition of H.L.A. Hart. One recent response is to advance an expressivist analysis of legal statements (Toh), which faces its own, familiar problems. This paper advances a rival, positivist-friendly account of legal statements which we call “quasi-expressivist”, explicitly modeled after Finlay’s metaethical theory of moral statements. This consists in a (...) |
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I will center the discussion of the Hart-Fuller debate on the five claims Hart mentions might be understood as legal positivisms main tenets: (1) the command theory; (2) the no necessary connection thesis; (3) the methodological claim; (4) the charge of positivism as formalism and the problem of interpretation; and (5) the meta-ethical confusion. In light of these five claims, I will explore whether the exchange of views between Hart and Fuller in 1957 truly amounted to a debate. Sorting out (...) |
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The article presents a vision of the challenges to which contemporary legal positivism has to respond. The constitutionalisation that governs current legal systems offers a new framework in which to develop the classic controversy between positivism and iusnaturalism. This article analyses the different positivist proposals put before the reality of the constitutional state as well as its replies to the criticisms of those who consider it anoutdated theory of little use. Finally, it will also deal with the relationship between positivism (...) |
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I argue that law is not best considered an essentially contested concept. After first explaining the notion of essential contestability and disaggregating the concept of law into several related concepts, I show that the most basic and general concept of law does not fit within the criteria generally offered for essential contestation. I then buttress this claim with the additional explanation that essential contestation is itself a framework for understanding complex concepts and therefore should only be applied when it is (...) |
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El propósito central de este ensayo es mostrar que el debate actual entre el positivismo excluyente y el incluyente se alimenta de, al menos, tres ideas equivocadas acerca de la relación entre el lenguaje jurídico y el moral, la vinculación entre la ciencia y la práctica del derecho y la concepción de lo que es una ciencia normativa. Expuestos estos errores, esbozo una propuesta para entender estas relaciones, fundada en la concepción neokantiana-kelseniana de la ciencia jurídica. De esta doctrina derivo (...) |
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Legal philosophers divide over whether it is possible to analyze legal concepts without engaging in normative argument. The influential analysis of legal rights advanced by Jules Coleman and Jody Kraus some years ago serves as a useful case study to consider this issue because even some legal philosophers who are generally skeptical of the neutrality claims of conceptual analysts have concluded that Coleman and Kraus's analysis manages to maintain such neutrality. But that analysis does depend in subtle but important ways (...) |
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The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between “standard positivism” and “post‐Hartian positivism.” Then I will consider various kinds of relations between law and morality that are worthy of jurisprudential interest, and explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should (...) |
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An increasing number of Italian scholars are beginning to share the idea that the conceptual basis of legal positivism (LP) is wrong, particularly in the field of Public Law. According to a group of theories called “neoconstitutionalism,” constitutionalism is to be understood not only as a principle based on the need to impose legal limits to political power, but also as an aggregation of values capable of continually remodelling legal relationships, positioning itself as a “pervasive” point of reference for legal (...) |
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Many contemporary practitioners of analytic jurisprudence take their understanding of legal positivism largely from Hart, and the debates about legal positivism exist largely in a post-Hartian world. But if we examine carefully the writings and motivations of Bentham and even Austin, we will discover that there are good historical grounds for treating both a normative version of positivism and a version more focused on legal decision-making as entitled to at least co-equal claims on the positivist tradition. And even if we (...) |
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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 (...) |
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ABSTRACTAt first sight, the work of the German legal philosopher and constitutional theorist, Robert Alexy, appears to offer a welcome counter-example to the general insulation of Anglo-American ju... |
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Abstract. The paper begins by challenging Hart's argument aimed to show that sanctions are not part of the concept of law. It shows that in the "minimal" legal system as understood by Hart, sanctions may be required for keeping the legal system efficacious. I then draw a methodological conclusion from this argument, which challenges the view of Hart (and his followers) that legal philosophy should aim at discovering some general, politically neutral, conceptual truths about law. Instead, the aim should be (...) |
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According to contemporary legal positivism, law claims to create obligations. In order for law to be able to create obligations, it must be capable of having authority. Legal positivism claims that for law to be capable of having authority, it only has to meet non-moral or non-normative conditions of authority. In this paper it is argued that law can only be capable of having authority if it also meets certain normative conditions. But if something must meet certain normative conditions in (...) |
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