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 (...) be taken into account, and what kind of such relations are indeed of no import at all. The upshot of this analysis consists in highlighting the distinction between two different dimensions of legal validity (formal validity and material validity respectively), and in pointing out that the positivist separability thesis can apply to formal validity only. On the other hand, when the ascertainment of material validity is at stake, some form of moral reasoning may well be involved (here and now, it isnecessarilyinvolved). The essay concludes with some brief remarks on the persisting importance of the positivist jurisprudential project. (shrink)

The general narrative of international criminal law (ICL) declares that the system adheres in an exemplary manner to the fundamental principles of a liberal criminal justice system. These fundamental principles distinguish a liberal system of criminal justice from an authoritarian system. However, recent scholarship has increasingly questioned the adherence of various ICL doctrines to such principles. The object of inquiry in this article is the discourse in ICL: the assumptions and forms of argumentation that are regarded as sound reasoning with (...) appropriate liberal aims, and how these forms of reasoning in fact engender contradictions with the liberal values proclaimed by the system. This article argues that, in drawing (as it necessarily did) on national criminal law as well as international human rights and humanitarian law, ICL absorbed contradictory assumptions and methods of reasoning. These contradictions in reasoning lead to contradictions in doctrine and departures from the stated principles of the system. The article explores three modes by which the assumptions of human rights liberalism subtly undermine the criminal law liberalism to which the system aspires. These modes include: interpretive approaches, substantive and structural conflation and ideological assumptions. The identity crisis theory helps explain how a liberal system of criminal justice - one that strives to serve as a model for liberal systems - has come to embrace illiberal doctrines. The article argues that we need to critically examine not only what we think, but how we think, in order to advance ICL as a coherent discipline. (shrink)

It has often and correctly been remarked that the Hart-Fuller debate of 1956–1969 set the agenda for Anglo-American jurisprudence in the last half of the twentieth century. The nature of law, of legal obligation, of legal authority, and of law's relation to morality were the questions that debate made central to jurisprudence as we have since practiced it.

Hart's defense of the separation of law and morality is partly based on his refusal to accept Radbruch's solution of the well‐known grudge informer case, in his famous article “Statutory Injustice and Suprastatutory Law.” In this paper, I present a detailed reconstruction of the “debate” between Radbruch and Hart on this case. I reach the conclusion that Hart fails to address the issue that was Radbruch's primary concern, namely the legal position of the judiciary when dealing with criminal statutes. I (...) suggest that Hart's separation thesis cannot be upheld in the face of this concern. In my argument, Hart's mistaken understanding of the verdict of the Oberlandesgericht Bamberg that he refers to plays a crucial role. (shrink)

This address at the Hart Centenary Conference in Cambridge in July 2007 reflects on foundational elements in Hart's method in legal philosophy. It argues that his understanding of what it is to adopt an internal point of view was flawed by (a) inattention to the difference between descriptive history (or biography or detection) and descriptive general theory of human affairs, (b) inattention to practical reason as argument from premises, some factual but others normative (evaluative) in their content, and (c) relative (...) inattention to the deliberations of law-makers as distinct from subjects of the law. These flaws contributed to a concept or theory of law that so truncated its account of the juridical, and of the sources of legal reasoning, that it could provide little or no guidance in situations of legal difficulty. The paper suggests that these flaws result, to some significant extent, from the skeptical doubts about morality evident particularly in his later work. All this has implications for the kind of approach to law and legal theory often self-described as positivist. (shrink)

This essay is an attempt to demonstrate, that International Criminal Law flexibilizes substantially the requirements for the recognition of international criminal norms with the objective of maintaining an apparently strict principle of legality. However, this approach is unsatisfactory, since there is a concealed recourse to suprapositive principles which are disguised as positive Law. Therefore, the formula proposed by Gustav Radbruch represents a more sincere way to face the question of the limits of positive Law. Hence this essay emphasizes the methodological (...) value of this formula and analyzes its scope and problems regarding its application. (shrink)