positive_law   9

Frederick Schauer - The Path-Dependence of Legal Positivism (Symposium - Jurisprudence and (Its) History) | Virginia Law Review - 101 Va. L. Rev. 957 (2015)
My aim in this Article is to focus on the history of thinking about law in the context of 3 topics (..) to show that the continuous development of the theory of legal positivism, however useful it may have been or may still be, has possibly caused us to ignore other aspects of what was originally part of the positivist picture. (..)The first of these dimensions is the relationship between legal theory and legal reform. (..) that an account of the nature of law might be developed not simply as an aid to understanding or accurate description, but instead as a way of facilitating reform of law itself or reform of how a society understands the idea of law. Second, legal positivism, at the time of its late 19thC (or perhaps even earlier) origins, was focused on the importance of coercion, force, and sanctions as central components of law. But as with the creation of legal theories for the purpose of legal reform, this emphasis on the coercive side of law has also been banished to a kind of jurisprudential purgatory, for reasons and with consequences that deserve further examination. The third lost element of earlier versions of legal positivism is its focus on judicial decision making and the role of judges. Modern legal positivists, for whom 1961 is all too often the beginning of useful thought about the nature of law, do not, with few exceptions, consider theories of judicial decision making to be a necessary or even important part of the positivist perspective. But it was not always so. -- downloaded pdf to Note
article  intellectual_history  intellectual_history-distorted  18thC  19thC  20thC  21stC  philosophy_of_law  jurisprudence  legal_theory  legal_system  political_philosophy  legal_reform  institutional_change  institutions  judiciary  judicial_review  law_enforcement  criminal_justice  punishment  coercion  authority  obligation  policymaking  political_change  social_theory  social_sciences  positivism-legal  positive_law  positivism  justice  Study_and_Uses  downloaded 
july 2015 by dunnettreader
Dan Priel - Toward Classical Legal Positivism (Symposium - Jurisprudence and (Its) History) | Virginia Law Review - 101 Va. L. Rev. 987 (2015)
I have two major aims: (1) set the historical record straight(...) Hobbes’s and Bentham’s work that seeks to understand their views on law not by isolating it from the rest of their wide-ranging body of work, but by understanding their jurisprudential work as part of a broader project. (2) My main aim is to contribute to contemporary jurisprudential debates and to suggest that the largely neglected approach of earlier positivists is superior to the view held by most contemporary legal positivists. (...) to what extent it is useful for us to call Hobbes and Bentham “legal positivists.” My answer to this question consists of three interrelated points. The first is that we draw an explicit link between their ideas and the view that (some time later) would come to be known as “positivism,” roughly the view that the methods of the “human sciences” are essentially the same as those of the natural sciences. The second point is that the classical legal positivists’ decisive break with natural law ideas prevalent in their day is to be found exactly here, in their views about metaphysics and nature. The third point is that this aspect of their work has been, in my view regrettably, abandoned by contemporary legal positivists. Though all three points are related, in this Article I will say relatively little about the first point, as I discussed it in greater detail elsewhere. -- downloaded pdf to Note
article  philosophy_of_law  jurisprudence  political_philosophy  intellectual_history  intellectual_history-distorted  17thC  18thC  19thC  20thC  21stC  Hobbes  Bentham  natural_law  natural_rights  positivism-legal  analytical_philosophy  metaphysics  natural_philosophy  nature  human_nature  scientific_method  social_theory  social_sciences  positivism  positive_law  Methodenstreit  methodology-quantitative  epistemology  sociology_of_knowledge  downloaded 
july 2015 by dunnettreader
Jeffrey A. Pojanowski - Positivism(s): A Commentary on Priel's "Toward Classical Legal Positivism" | Virginia Law Review - 101 Va. L. Rev. 1023 (2015)
Anglo-American jurisprudence, before it insulated itself in conceptual analysis and defined itself in opposition to broader questions, was properly a “sociable science,” to use Professor Postema’s phrase from his symposium article. And, in part due to the exemplars of history, so it may become again. By drawing on Bentham and Hobbes, Professor Dan Priel’s Toward Classical Positivism points forward toward more fruitful methods of jurisprudence while illuminating the recent history and current state of inquiry. His article demonstrates the virtues and promise of a more catholic approach to jurisprudence. It also raises challenging questions about the direction to take this rediscovered path, and I am not sure I always agree with his suggested answers. Any misgivings I have about Priel’s particular approach, however, do not diminish my appreciation; I find even the points of disagreement to be live and meaningful, and that itself is refreshing. -- downloaded pdf to Note
article  philosophy_of_law  jurisprudence  political_philosophy  intellectual_history  intellectual_history-distorted  17thC  18thC  19thC  20thC  21stC  Hobbes  Bentham  natural_law  natural_rights  positivism-legal  analytical_philosophy  metaphysics  natural_philosophy  nature  human_nature  scientific_method  social_theory  social_sciences  positivism  positive_law  Methodenstreit  methodology-quantitative  epistemology  sociology_of_knowledge  downloaded 
july 2015 by dunnettreader
Jeremy Waldron - Ius Gentium: A Defense of Gentili's Equation of the Law of Nations and the Law of Nature :: SSRN November 2008
NYU School of Law, Public Law Research Paper No. 08-34 -- The relation between the law of nature and the law of nations (ius gnetium) remains unclear. This paper examines Gentili's apparent equation of the two, and it considers more generally how abstract natural law reasoning might be improved by the sort of empirical/comparative law reasoning (as we would call it) that thinkers like Gentili, Grotius and others engaged in when they tried to determine what natural law teaches us about the regulation of war. -- Pages in PDF File: 17 -- Keywords: Gentili, ius gentium, law of nations, laws of war, moral reasoning, natural law, positive law -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  jurisprudence  legal_theory  analytical_philosophy  Roman_law  natural_law  international_law  positivism-legal  positive_law  moral_philosophy  comparative_law  17thC  18thC  Europe-Early_Modern  Grotius  gentility  law_of_the_sea  law_of_nations  ius_gentium  downloaded 
june 2015 by dunnettreader
Jeremy Waldron - What is Natural Law Like? (2012) :: SSRN
NYU School of Law, Public Law Research Paper No. 12-27 -- “The State of Nature,” said John Locke, “has a Law of Nature to govern it, which obliges every one.” But what is “a law of nature”? How would we tell, in a state of nature, that there was a natural law as opposed to something else...? What form should we expect natural law to take in our apprehension of it? This paper argues three things. (a) John Finnis’s work on natural law provides no answer to these questions; his “theory of natural law” is really just a theory of the necessary basis in ethics for evaluating positive law. (b) We need an answer to the question “What is natural law like” not just to evaluate the work of state-of-nature theorists like Locke, but also to explore the possibility that natural law might once have played the role now played by positive international law in regulating relations between sovereigns. And (c), an affirmative account of what natural law is like must pay attention to (1) its deontic character; (2) its enforceability; (3) the ancillary principles that have to be associated with its main normative requirements if it is to be operate as a system of law; (4) its separability ...from ethics and morality, even from objective ethics and morality; and (5) the shared recognition on earth of its presence in the world. Some of these points — especially 3, 4, and 5 — sound like characteristics of positive law. But the paper argues that they are necessary nevertheless if it is going to be plausible to say that natural law has ever operated (or does still operate) as law in the world. -- Number of Pages: 21 -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  political_philosophy  moral_philosophy  intellectual_history  17thC  18thC  19thC  IR  IR_theory  international_law  international_system  sovereignty  natural_law  positive_law  norms  Aquinas  Locke  Locke-2_Treatises  state-of-nature  enforcement  legal_validity  Finnis  downloaded  EF-add 
july 2014 by dunnettreader
Scott J. Shapiro - The "Hart-Dworkin" Debate: A Short Guide for the Perplexed (2007) :: SSRN
Scott J. Shapiro, Yale University - Law School -- U of Michigan Public Law Working Paper No. 77 -- Since the appearance in 1967 of "The Model of Rules I," Ronald Dworkin's seminal critique of H.L.A. Hart's theory of legal positivism, countless books and articles have been written either defending Hart against Dworkin's objections or defending Dworkin against Hart's defenders. My purpose in this essay is not to declare an ultimate victor; rather it is to identify precisely the core issue around which the debate is organized. -- I think that there is an important unity to the Hart-Dworkin debate that can be described in a relatively straightforward manner. I suggest that the debate is organized around one of the most profound issues in the philosophy of law, namely, the relation between legality and morality. Dworkin's basic strategy throughout the course of the debate has been to argue that, in one form or another, legality is ultimately determined not by social facts alone, but by moral facts as well. This contention directly challenges, and threatens to undermine, the positivist picture about the nature of law.... The Hart-Dworkin debate, ... I describe how Dworkin modified his critique to circumvent the responses of Hart's followers, thereby inaugurating a new phase in the debate. Virtually no attention, however, has been paid to this latter challenge, which is especially surprising given that none of the previous positivistic defenses are helpful against it. I then sketch out a possible response positivists might offer to this extremely powerful objection. -- No of Pages: 55 -- Keywords: Jurisprudence, Hart, Dworkin, Legal Positivism, Natural Law, Interpretation -- downloaded pdf to Note
article  SSRN  philosophy_of_law  20thC  21stC  legal_theory  legal_realism  positivism-legal  positive_law  natural_law  normativity  moral_philosophy  morality-conventional  sociology_of_law  Dworkin  Hart  downloaded  EF-add 
july 2014 by dunnettreader
Brian Bix - On the Dividing Line between Natural Law Theory and Legal Positivism :: SSRN - Notre Dame Law Review, Vol. 75, No. 5, Aug. 2000
The nature and location of the disagreement(s) between legal positivism and natural law theory has often been unclear, in large part because of the way each approach has been misunderstood by advocates for the other side. Many commentators assume that the two approaches disagree about whether immoral rules can have the status of law, but there is little evidence to support this view. Natural law theorists from Aquinas to Finnis have allowed that immoral rules are law (can have legal status), only that they are not law in its fullest sense (because such laws do not create moral obligations to obey them). The article concludes that the debate between natural law and legal positivism is joined elsewhere: regarding the meta-theoretical question of whether it is possible and valuable to have a morally neutral theory of law. Legal positivists advocate morally neutral theories, while natural law theorists like Finnis expressly or implicitly argue for a pervasively moral-evaluative theory of law, arguing that one can only understand a reason-giving practice like law against the background of what it would mean to give a good (legitimate, moral-obligation-creating) reason for action. A variation of the same argument is that one can only understand law within a (teleological) theory that gives a place for the moral ideal (justice) to which law strives. -- downloaded pdf to Note
article  SSRN  philosophy_of_law  legal_system  legal_theory  legal_history  intellectual_history  natural_law  positivism-legal  positive_law  Aquinas  moral_philosophy  values  obligation  reasons  reasons-externalism  action-theory  justice  legitimacy  downloaded  EF-add 
july 2014 by dunnettreader
Natural Law Theory: The Modern Tradition by Brian Bix :: SSRN
Posted 1999 - chapter in OXFORD HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAW, Jules L. Coleman & Scott Shapiro, eds., Oxford University Press, 2002 -- The works of contemporary Natural Law theorists, including Lon Fuller, Michael Moore, Ronald Dworkin, and John Finnis, are discussed critically and their views are placed within the context of a tradition thousands of years old. In the summary of the broader context, the paper considers the connections and relationships between natural law theory and nature, God, natural rights, law, and legal positivism. The article also includes an extensive (but not exhaustive) bibliography. -- downloaded pdf to Note
chapter  books  SSRN  philosophy_of_law  legal_system  legal_history  intellectual_history  religious_history  ancient_philosophy  medieval_philosophy  Aquinas  moral_philosophy  natural_law  natural_rights  positivism-legal  positive_law  obligation  divine_command  sociology_of_law  nature  natural_religion  bibliography  downloaded  EF-add 
july 2014 by dunnettreader
Harold J. Berman - The Origins of Historical Jurisprudence: Coke, Selden, Hale | JSTOR: The Yale Law Journal, Vol. 103, No. 7 (May, 1994), pp. 1651-1738
In the 17thC, leading English jurists introduced into the Western legal tradition a new philosophy of law which both competed with and complemented the 2 major schools of law that had opposed each other: natural law theory and legal positivism. The basic tenet of the historical school is that the primary source of the validity of law, including both its moral and political validity, is its historicity, especially the developing customs and ongoing traditions of the community whose law it is. Historical experience is thought to have a normative significance. This theory was adumbrated by Edward Coke, developed by John Selden, and articulated by Matthew Hale, who integrated it with the 2 older theories. In the late 18thC & early 19thC, the 3 theories split apart & the historical school emerged as an independent philosophy. Historical jurisprudence predominated in Europe and the US in the late 19thC & early 20thC, but has been ignored or repudiated by most American legal philosophers. It continues to play an important role in the thinking of American judges and lawyers, especially in constitutional law and in areas where common law still prevails. Its full-fledged articulation only emerged in the context of the English Revolution and its ideals of judicial independence and parliamentary supremacy. Historical jurisprudence had important connections both with Puritan theology and with developments in the natural sciences. In legal science, it was reflected particularly in the development of the doctrine of precedent. In the 18thC, it was given expression by Blackstone and Burke, and in the 19thC it was finally established as a separate school of jurisprudence by the great German jurist Carl Friedrich von Savigny.
article  jstor  intellectual_history  legal_history  legal_system  legal_theory  moral_philosophy  political_philosophy  political_culture  common_law  constitutionalism  17thC  18thC  19thC  20thC  British_history  British_politics  Coke  Selden  Blackstone  Burke  natural_law  positive_law  civil_code  judiciary  English_Civil_War  Glorious_Revolution  Parliamentary_supremacy  downloaded  EF-add 
may 2014 by dunnettreader

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