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Positivism through thick and thin

Frederick Schauer

In Brian Bix (ed.), Analyzing law: new essays in legal theory. New York: Oxford University Press. pp. 65--78 (1998)

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Positivism, Legal Validity, and the Separation of Law and Morals.Giorgio Pino - 2014 - Ratio Juris 27 (2):190-217.details 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 (...) Download Export citation Bookmark 2 citations
Positivism Before Hart.Frederick Schauer - 2011 - Canadian Journal of Law and Jurisprudence 24 (2):455-471.details 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 (...) Download Export citation Bookmark 1 citation
Was Austin right after all? On the role of sanctions in a theory of law.Frederick Schauer - 2010 - Ratio Juris 23 (1):1-21.details In modern jurisprudence it is taken as axiomatic that John Austin's sanction-based account of law and legal obligation was demolished in H.L.A. Hart's The Concept of Law, but Hart's victory and the deficiencies of the Austinian account may not be so clear. Not only does the alleged linguistic distinction between being obliged and having an obligation fail to provide as much support for the idea of a sanction-independent legal obligation as is commonly thought, but the soundness of Hart's claims, as (...) Download Export citation Bookmark 12 citations
Natural law as professional ethics: A reading of Fuller.David Luban - 2001 - Social Philosophy and Policy 18 (1):176-205.details In Plato's Laws, the Athenian Stranger claims that the gods will smile only on a city where the law This passage is the origin of the slogan an abbreviation of which forms our phrase From Plato and Aristotle, through John Adams and John Marshall, down to us, no idea has proven more central to Western political and legal culture. Yet the slogan turns on a very dubious metaphor. Laws do not rule, and the is actually a specific form of rule (...) Download Export citation Bookmark 3 citations

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