dunnettreader + positivism-legal   42

Brian Z. Tamanaha - The Third Pillar of Jurisprudence: Social Legal Theory :: SSRN - William & Mary Law Review, Vol. 56, 2015
Jurisprudence is generally thought to consist of two main classical rival branches — natural law and legal positivism — followed by a bunch of modern schools — legal realism, law and economics, critical theory, legal pragmatism, etc. In this essay I argue that three main branches of jurisprudence have existed, and battled, for centuries, not two, but the third goes unrecognized as such because it has traveled under different labels and the underlying connections have been clouded by various confusions. The core insights and focus of this third branch, what I call “Social Legal Theory,” trace in a continuous thread from Montesquieu, through historical jurisprudence, sociological jurisprudence, and legal realism, up to the present. This third branch, I argue, provides a contrasting/complementary perspective, in conjunction with natural law and legal positivism, which rounds out the full range of theoretical angles on law: natural law is normative; legal positivism is analytical/conceptual; and social legal theory is empirical. (Among a number of clarifications, I answer the common objection that empirically-grounded theories are not sufficiently theoretical.) The conventional jurisprudential narrative is redrawn in this essay in a way that exposes unseen connections among theoretical schools and brings into focus critical issues about the nature of law that currently are marginalized by natural law and legal positivism. -- Pages in PDF File: 44 -- Keywords: Jurisprudence, legal philosophy, law and society, legal realism, legal development, legal history
article  SSRN  philosophy_of_law  jurisprudence  legal_theory  legal_reasoning  positivism-legal  natural_law  legal_realism  legal_history  sociology_of_law  social_order  social_theory  change-social  intellectual_history  intellectual_history-distorted  18thC  19thC  20thC  Montesquieu  pragmatism  downloaded 
october 2015 by dunnettreader
Brian Leiter, Michael Sevel - "Philosophy of Law" -- ENCYCLOPAEDIA BRITANNICA, 2015 :: SSRN
Michael Sevel, University of Sydney - Faculty of Law -- A brief and general introduction to the philosophy of law. The article includes a history of the philosophy of law from Ancient Greece to the present, and a discussion of the primary questions and arguments of the field.-- Pages in PDF File: 29 -- Keywords: Jurisprudence, philosophy of law, legal positivism, natural law theory, legal realism -- downloaded pdf to Note
philosophy_of_law  intellectual_history  jurisprudence  legal_history  legal_realism  natural_law  positivism-legal  downloaded 
october 2015 by dunnettreader
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
Steven Walt - What Can The History of Jurisprudence Do For Jurisprudence? A Commentary on Schauer's "The Path-Dependence of Legal Positivism" | Virginia Law Review - 101 Va. L. Rev. 977 (2015)
Walt's response (at least the abstract) appears to prove Schauer's point quite nicely, as if logic and argument by legal theorists takes place in an abstract world where "how did we get here" is universally ignored, despite its possible relevance for "why are we here", "what are we doing here" and "where does it look like we might be headed" -- but Walt devoted 10 pages to his response, so one hopes he has more to justify his position than what comes across as a mix of arrogance (we don't need to learn from history because our theoretical grounding and argumentative methods are self-contained and self-sufficient) and cynicism (history might be interesting, but no way will anybody change what gets them published and tenure) -- out of curiosity as to whether it's really as bad as the abstract makes it sound, downloaded pdf to Note
article  philosophy_of_law  jurisprudence  legal_theory  analytical_philosophy  concepts  positivism  positivism-legal  historiography  legal_history  intellectual_history  intellectual_history-distorted  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
Alice Ristroph - Sovereignty and Subversion (Symposium - Jurisprudence and (Its) History) | Virginia Law Review - 101 Va. L. Rev. 1029 (2015)
Hobbes’s account of law, like his account of punishment, does not fit well into our existing scholarly categories. (..). He was neither a legal positivist nor a natural law theorist, at least not as we usually use these labels. He adopted neither a retributive nor a consequentialist justification of punishment. Yet his account of human interaction, particularly with respect to law and punishment, captures actual experience better than the more familiar alternatives. Moreover, the space for subversion in Hobbes’s theory may make his account more normatively appealing than it has seemed to modern liberals. (...) 3 questions about Hobbesian theory: What is law? What is its relationship to punishment? And what are the implications of Hobbes’s theory for contemporary efforts to describe law or the relationship of law to punishment? The first (..) Hobbes’s legal theory is still so widely mischaracterized, sometimes even by Hobbes scholars, that it is worth returning to his claims. The second question has received much less attention, perhaps because a right to resist punishment seems so discordant with the authoritarian Hobbes we know, or think we know. And the third question has received still less attention, for contemporary jurisprudence scholarship rarely cites anyone who wrote before Jeremy Bentham and John Austin. I hope to show that, in many instances, Hobbes has been misread; even more importantly, I hope to persuade scholars of jurisprudence that what Hobbes actually said is worthy of their engagement. -- downloaded pdf to Note
article  jurisprudence  philosophy_of_law  intellectual_history  intellectual_history-distorted  Hobbes  17thC  political_philosophy  social_theory  natural_law  natural_rights  positivism-legal  sovereignty  authority  obligation  punishment  resistance  liberalism  downloaded 
july 2015 by dunnettreader
Mark C. Murphy - A Commentary on Ristroph’s “Sovereignty and Subversion” | Virginia Law Review - 101 Va. L. Rev. 1055 (2015)
She is correct in rejecting the assimilation of Hobbes’s legal theory to Austin’s, and in noting the strands of Hobbes’s view that disqualify him from counting as any sort of legal positivist. And I agree, on the whole, with her characterization of Hobbes’s account of justified punishment, and that this account has its attractions yet produces some puzzles which Hobbes does not fully resolve. My disagreements are with her second-order characterization of Hobbes’s legal theory. I want to discuss two related areas of disagreement. The first disagreement concerns whether we should assess Hobbes’s account of law in terms of the standards of general descriptive jurisprudence: Ristroph denies that it should be; I disagree. The second concerns whether we should take Hobbes’s treatment of the political as explanatorily prior to the legal to show that Hobbes was in some way apart from the natural law tradition in jurisprudence: Ristroph affirms this; I disagree. -- downloaded pdf to Note
article  jurisprudence  philosophy_of_law  intellectual_history  intellectual_history-distorted  Hobbes  17thC  political_philosophy  social_theory  natural_law  natural_rights  positivism-legal  sovereignty  authority  obligation  punishment  resistance  liberalism  downloaded 
july 2015 by dunnettreader
Charles Barzun and Dan Priel - Jurisprudence and (Its) History - Symposium Introduction | Virginia Law Review 101 Va. L. Rev. 849 (2015)
Whereas legal philosophers offer “analyses” that aim to be general, abstract, and timeless, legal historians offer “thick descriptions” of what is particular, concrete, and time-bound. But surface appearances can deceive. Perhaps unlike other areas of philosophy, the subject matter of jurisprudence is at least partially (if not entirely) a social phenomenon. Courts, legislatures, judicial orders, and statutes are the products of human efforts, both collective and individual, and they only exist as legislatures, courts, and the like insofar as they possess the meaning they do in the eyes of at least some social group. For this reason, legal philosophers since at least H.L.A. Hart have recognized their task to be a “hermeneutic” one—one which aims to discern or make explicit the “self-understanding” of legal actors. At the same time, legal historians aim not simply to record legal rules that existed at some given point in history, but to unearth the meaning that actual people—judges, lawyers, politicians, and ordinary citizens—have attached to law. When they do so, they might be seen as uncovering evidence of those same “self-understandings” that philosophers claim constitute law. Perhaps, then, philosophical and historical inquiries about law do not differ so radically from each other after all. -- downloaded pdf to Note
article  philosophy_of_law  philosophy_of_language  ordinary_language_philosophy  jurisprudence  political_philosophy  moral_philosophy  intellectual_history  historiography  legal_history  legal_theory  legal_reasoning  constitutional_law  Founders  originalism  contextualism  change-social  change-economic  change-intellectual  norms  hermeneutics  positivism-legal  philosophy_of_history  institutional_change  downloaded 
june 2015 by dunnettreader
Jeremy Waldron - Can There Be a Democratic Jurisprudence? :: SSRN - Nov 2008
NYU School of Law, Public Law Research Paper No. 08-35 -- General jurisprudence purports to consider law in general. But to break out of the arid abstractions of analytic legal philosophy, it may be worth also giving some jurisprudential consideration to the distinctive features of law in the context of a particular kind of political system. This paper considers the jurisprudence of law in a modern democracy. It explores a suggestion (made by Ronald Dworkin and others) that legal positivism might be a theory particularly apt for a democracy. And it explores the meaning and significance for democratic political theory of ideas like the generality of law, the separation of law and morality, the sources thesis, and law's public orientation. At the very end, the paper also considers Jean-Jacques Rousseau's view that the word "law" should be confined to measures that are applicable to all, made by all, and enacted in the spirit of a general will. -- Pages in PDF File: 5 -- Keywords: analytic legal philosophy, democracy, Hart, jurisprudence, legal positivism, Rousseau, separation of law and morality, sources of law -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  jurisprudence  legal_theory  legal_system  political_philosophy  government-forms  democracy  positivism-legal  analytical_philosophy  Hart  general_will  moral_philosophy  Dworkin  lawmaker  politics-and-religion  legal_reasoning  downloaded 
june 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
Sandy Levinson - The continuing relevance of Stephen A. Douglas: "Popular sovereignty," federalism, and moral relativism" | Balkinization - June 2015
Consider the following passages from the anguished dissents (..by) Scalia and Alito in Obergefell: [re their "indifference" re substance of SSM - notes how much this clashes with their Catholic beliefs that insist on moral absolutes determined by "natural law"] -- Federalism is (..) as a practical matter, as a means of acknowledging the diverse views we have about matters of political or social morality (..) there's much to said for this as a means for maintaining social peace, albeit at the cost of accepting the maintenance of what many might consider significant injustice in some of the states. But note well that what Scalia and Alito are doing is really reviving the theory of "popular sovereignty" best identified with the Little Giant Sen. Stephen A. Douglas with regard to the issue of slavery. (,.) Douglas professed himself indifferent to the moral critique of slavery. (..) What this translated into was the desirability of letting each state, as it joined the Union, make its own decision as to slavery or freedom. Somewhat more complicated was the right of the pre-state territory to make its own decision, in territorial legislatures, to welcome slaveowners. Douglas, to his political detriment, argued that they could place stumbling blocks in the way of the slaveowners, but, if they chose not to, that was all right too. The important thing was to recognize the fundamentally "federal" nature of the Union, a collection of people with decidedly different views about the legitimacy of owning other human beings as chattels, and to allow that decision to be made locally rather than on a one-size-fits-all national basis.
Instapaper  SCOTUS  constitutional_law  19thC  states_rights  federalism  slavery  morality-conventional  morality-divine_command  morality-Christian  rights-legal  natural_law  natural_rights  positivism-legal  Holmes  Douglas_Stephen  Lincoln  antebellum_era  abolition  marriage  Thomism  Thomism-21stC  Catholics  Papacy  from instapaper
june 2015 by dunnettreader
Stephen Turner - Max Weber and the Dispute Over Reason and Value (Routledge, 1984) | bookmark for book abstract - Academia.edu
The problem of the nature of values and the relation between values and rationality is one of the defining issues of twentieth-century thought and Max Weber was one of the defining figures in the debate. In this book, Turner and Factor consider the development of the dispute over Max Weber's contribution to this discourse, by showing how Weber's views have been used, revised and adapted in new contexts. The story of the dispute is itself fascinating, for it cuts across the major political and intellectual currents of the twentieth century, from positivism, pragmatism and value-free social science, through the philosophy of Jaspers and Heidegger, to Critical Theory and the revival of Natural Right and Natural Law. As Weber's ideas were imported to Britain and America, they found new formulations and new adherents and critics and became absorbed into different traditions and new issues. This book was first published in 1984 by Routledge. -- Research Interests: Ethics, Political Theory, Continental Philosophy, Max Weber (Philosophy), Social and Political Philosophy, and Max Weber
books  intellectual_history  19thC  20thC  Weber  social_theory  political_philosophy  moral_philosophy  philosophy_of_social_science  epistemology  epistemology-social  positivism  rationality  values  fact-value  constructivism  pragmatism  German_scholarship  German_historical_school  hermeneutics  Heidegger  Frankfurt_School  critical_theory  natural_law  natural_rights  positivism-legal 
may 2015 by dunnettreader
Emmanuelle de Champs - Enlightenment and Utility: Bentham in French, Bentham in France (to be released March 2015) | Ideas in Context series | Cambridge University Press
Jeremy Bentham (..) was a seminal figure in the history of modern political thought. This lively monograph presents the numerous French connections of an emblematic British thinker. (..) Placing Bentham's thought in the context of the French-language Enlightenment through to the post-Revolutionary era, (..) the case for a historical study of 'Global Bentham'. Examining previously unpublished sources, she traces the circulation of Bentham's letters, friends, manuscripts, and books in the French-speaking world. (..) transnational intellectual history reveals how utilitarianism, as a doctrine, was both the product of, and a contribution to, French-language political thought at a key time(..). The debates (re) utilitarianism in France cast new light on the making of modern Liberalism. **--** Intro **--** Part I. An Englishman in the Republic of Letters: 1. Languages of Enlightenment *-* 2. Satire and polemics *-* 3. Defining utilitarianism: private connections and correspondence **--** Part II. 'Projet d'un corps de loix complet' and the Reform of Jurisprudence in Europe: 4. The Genesis of Projet *-* 5. Projet in Enlightenment legal thought *-* 6. The politics of legal reform **--** Part III. Reflections for the Revolution in France: 7. Frenchmen and Francophiles: Lord Lansdowne's network *-* 8. British expertise for French legislators *-* 9. Utility, rights and revolution: missed encounters? **--** Part IV. Utile Dulcis? Bentham in Paris, 1802: 10. Dumont's editorship: from the Bibliothèque Britannique to Traités de législation civile et pénale *-* 11. A mixed reception *-* 12. Autumn 1802: Bentham in Paris **--** Part V. Liberty, Utility and Rights (1815–1832): 13. 'For one disciple in this country, I have 50 at least in France' *-* 14. Utilitarian arguments in French politics *-* 15. A Utilitarian moment? French liberals and utilitarianism *-* Epilogue: Bentham in the July Revolution *-* Conclusion -- marketing materials not yet available
books  find  intellectual_history  political_philosophy  political_economy  legal_theory  18thC  19thC  British_history  France  French_Enlightenment  Enlightenment  Bentham  utilitarianism  utility  reform-political  reform-social  reform-legal  reform-economic  jurisprudence  civil_code  Republic_of_Letters  networks-policy  networks-information  Anglo-French  British_foreign_policy  diplomats  diplomacy-environment  francophile  Landsdowne_Marquis_of  faction  British_politics  patrons  patronage  elite_culture  cross-border  cultural_history  cultural_influence  technical_assistance  criminal_justice  liberalism  rights-legal  rights-political  civil_law  civil_liberties  civil_society  French_Revolutionary_Wars  Peace_of_Amiens  Napoleonic_Wars  Restoration-France  bourgeoisie  July_Monarchy  legal_reasoning  positivism-legal 
february 2015 by dunnettreader
Francis Joseph Mootz - Hermeneutics and Law (June 30, 2014) in The Blackwell Companion to Hermeneutics (Eds. Naill Keane and Chris Lawn, 2015) :: SSRN
University of the Pacific - McGeorge School of Law -- This chapter will appear in a forthcoming book on hermeneutics. After providing a hermeneutical phenomenology of legal practice that locates legal interpretation at the center of the rule of law, the chapter considers three important hermeneutical themes: (1) the critical distinction between a legal historian writing aboout a law in the past and a judge deciding a case according to the law; (2) the reinvigoration of the natural law tradition against the reductive characteristics of legal positivism by construing human nature as hermeneutical; and. (3) the role of philosophical hermeneutics in grounding critical legal theory rather than serving as a quiescent acceptance of the status quo, as elaborated by reconsidering the famous exchanges between Gadamer, Ricoeur and Habermas. -- I argue that these three important themes are sufficient to underwrite Gadamer's famous assertion that legal practice has exemplary status for hermeneutical theory. -- downloaded pdf to Note
article  books  SSRN  legal_history  legal_system  legal_theory  historiography  lit_crit  critical_theory  legal_reasoning  judiciary  precedent  hermeneutics  natural_law  positivism-legal  legal_realism  rhetoric-writing  human_nature  epistemology-social  epistemology-moral  Gadamer  Habermas  Ricoeur  Heidegger  downloaded  EF-add 
august 2014 by dunnettreader
Review Essay: Legal Thought in Enlightenment's Wake by Jeffrey A. Pojanowski :: SSRN - 4 Jurisprudence, 2013, Forthcoming
Notre Dame Legal Studies Paper No. 12-80 -- This review essay considers Steven D. Smith’s most recent book, The Disenchantment of Secular Discourse. Rather than focusing on the book’s argument about the practices and pathologies of the public square, this essay uses Smith’s chapter on scientific thought as a platform for exploring connections between Disenchantment and Smith’s prior work in legal theory. The catalyst for these reflections is Scandinavian legal realism. Considering these elements together sheds light on both the limits and virtues of central ideas about legal obligation and authority in contemporary jurisprudence. Such perspective points to a broader argument that jurisprudential debates about methodology and concepts may be as much about how we read the universe as they are about how we understand law. -- Keywords: jurisprudence, legal theory, obligation, authority, conceptual analysis, legal positivism
books  reviews  philosophy_of_law  political_philosophy  moral_philosophy  obligation  secularism  secularization  legal_realism  authority  legal_theory  analytical_philosophy  concepts  legal_culture  positivism-legal  downloaded  EF-add 
july 2014 by dunnettreader
Brian Bix - On Philosophy in American Law: Analytical Legal Philosophy :: SSRN in PHILOSOPHY IN AMERICAN LAW, Francis J. Mootz, III, ed., Cambridge University Press, 2009
This short article was written for a collection on American legal philosophy today. It gives a brief overview of analytical legal philosophy, and speculates on why this theoretical approach has been consistently misunderstood in the United States, from the time of the legal realists until today. --Number of Pages in PDF File: 6 -- Keywords: analytical legal philosophy, legal theory, legal positivism
article  books  SSRN  intellectual_history  19thC  20thC  philosophy_of_law  analytical_philosophy  legal_realism  positivism-legal  downloaded  EF-add 
july 2014 by dunnettreader
Brian Leiter - The End of Empire: Dworkin and Jurisprudence in the 21st Century (2005) :: SSRN
U of Texas Law, Public Law Research Paper No. 70 -- This essay (based on a keynote address to the inaugural conference of the new Rutgers Institute for Law and Philosophy) reviews five major developments in the field of law and philosophy over the past 30 years, examining, in particular, the place of the well-known work of Ronald Dworkin, work which has loomed larger outside the field than within. In particular, it argues that the seven most distinctive Dworkinian theses about the nature of law and adjudication have now been extensively and decisively criticized over the past three decades, so much so that Dworkin himself has abandoned several of them. While Dworkin's work was indisputably important for the development of legal positivism in the final quarter of the twentieth-century, the essay shows why it is unlikely to play much role in jurisprudence of the 21st century. -- Number of Pages in PDF File: 22 -- downloaded pdf to Note
article  SSRN  intellectual_history  20thC  post-WWII  social_sciences-post-WWII  philosophy_of_law  moral_philosophy  positivism-legal  Dworkin  downloaded  EF-add 
july 2014 by dunnettreader
Brian Leiter - Explaining Theoretical Disagreement (2007) :: SSRN
Cited a number of times of Texas Law, Public Law Research Paper No. 124 -- Shapiro (2007) argues that Dworkin posed a new objection to legal positivism in Law's Empire, to which positivists, he says, have not adequately responded. Positivists, the objection goes, have no satisfactory account of what Dworkin calls "theoretical disagreement" about law, that is, disagreement about "the grounds of law" or what positivists would call the criteria of legal validity. I agree with Shapiro that the critique is new, and disagree that it has not been met. Positivism can not offer an explanation that preserves the "face value" of theoretical disagreements, because the only intelligible dispute about the criteria of legal validity is an empirical or "head count" dispute, i.e., a dispute about what judges are doing, and how many of them are doing it. Positivism, however, has two other explanations for theoretical disagreement - either theoretical disagreements are disingenuous, in the sense that the parties, consciously or unconsciously, are really trying to change the law,...or they are simply in error, that is, ...there is no fact of the matter about the grounds of law in this instance precisely because there is no convergent practice of behavior among officials constituting a Rule of Recognition. The "Disingenuity" and "Error Theory" accounts of theoretical disagreement are explored, with attention to the theoretical desiderata (e.g., simplicity, consilience, methodological conservativism) at stake in choosing between competing explanatory theories. Particular attention is given to the best explanation for Riggs v. Palmer -- Number of Pages: 44
paper  SSRN  philosophy_of_law  sociology_of_law  positivism-legal  foundationalism  Dworkin  legal_validity 
july 2014 by dunnettreader
Jeremy Waldron Who Needs Rules of Recognition? by :: SSRN in THE RULE OF RECOGNITION AND THE U.S. CONSTITUTION, Matthew Adler and Kenneth Himma, eds., Oxford University Press, 2009
NYU School of Law, Public Law Research Paper No. 09-21 -- I argue against the idea (made popular by H.L.A. Hart) that the key to a legal system is its "rule of recognition." I argue that much of the work allegedly done by a rule of recognition is either done by a different kind of secondary rule (what Hart called "a rule of change") or it is not done at all (and doesn't have to be done). A rule of change tells us the procedures that must be followed and the substantive conditions that must be satisfied if law is to be changed legislatively; and a judge "recognizes" changes simply by using this checklist. In common law, there is no clear rule of change (because we are profoundly ambivalent about judicial lawmaking). But we get by without one, and without a determinate rule of recognition that would tell us precisely how to infer rules from precedents. It is quite liberating, really, to abandon the idea of a rule of recognition. Apart from anything else, it relieves us from having to participate in endless debates about whether the US Constitution is (or contains) a rule of recognition for American law. The Constitution contains rules of change; that's what matters. -- Number of Pages in PDF File: 28 -- Keywords: certainty, closure, common law, constitution, grundnorm, H.L.A. Hart, Hans Kelsen, Jeremy Bentham, jurisprudence, legal positivism, rule of change, rule of recognition -- downloaded pdf to Note
article  books  SSRN  philosophy_of_law  political_philosophy  legal_system  sociology_of_law  legal_validity  constitutionalism  positivism-legal  common_law  change-social  institutional_change  legislation  judiciary  precedent  judicial_review  foundationalism  US_constitution  Bentham  Hart  Kelsen  downloaded  EF-add 
july 2014 by dunnettreader
Scott J. Shapiro - What is the Rule of Recognition (and Does it Exist)? [chapter] :: SSRN in THE RULE OF RECOGNITION AND THE U.S. CONSTITUTION, Matthew Adler, Kenneth Himma, eds., Oxford University Press, 2009
Yale Law School, Public Law Working Paper No. 184 -- One of the principal lessons of The Concept of Law is that legal systems are not only comprised of rules, but also founded on them ....we cannot account for the way we talk and think about the law - as an institution which persists over time, imposes duties and confers powers, enjoys supremacy over other kinds of practices, resolves doubts and disagreements about what is to be done in a community and so on - without supposing that it is regulated by what he called the secondary rules of recognition, change and adjudication. -- In Part 1 I try to state Hart's doctrine of the rule of recognition with some precision. -- I also explore in this part whether the US Constitution can be considered the Hartian rule of recognition for the US legal system. In Part 2 I attempt to detail the many roles that the rule of recognition plays within Hart's theory of law. -- In Part 3 I examine three important challenges to Hart's doctrine: 1) the rule is under- and over-inclusive; 2) Hart cannot explain how social practices are capable of generating rules that confer powers and impose duties and hence cannot account for the normativity of law; 3) Hart cannot explain how disagreements about the criteria of legal validity that occur within actual legal systems are possible. In Parts 4 & 5, I address these objections. ...athough Hart's particular account of the rule of recognition is flawed, a related notion should be substituted - roughly, to treat the rule of recognition as a shared plan which sets out the constitutional order of a legal system. As I try to show, understanding the rule of recognition in this new way allows the legal positivist to overcome the challenges lodged against Hart's version while still retaining the power of the original idea. -- downloaded pdf to Note
article  books  SSRN  philosophy_of_law  legal_system  social_theory  social_order  political_order  change-social  institutions  constitutions  constitutional_law  constitutionalism  normativity  norms  obligation  institutional_change  positivism-legal  Hart  Dworkin  Raz  Finnis  US_constitution  conflict_of_laws  natural_law  legal_validity  legal_realism  sociology_of_law  community  planning  downloaded  EF-add 
july 2014 by dunnettreader
Jeremy Waldron - A Religious View of the Foundations of International Law (2011) :: SSRN - Charles E. Test Lectures in the James Madison Program at Princeton University
NYU School of Law, Public Law Research Paper No. 11-29 -- Lecture 1 begins from a specifically Christian point of view, though it also addresses the difficulties of sustaining a viewpoint of this kind in a multi-faith and indeed increasingly secular world. Lecture 2 considers nationhood, sovereignty, and the basis for the division of the world into separate political communities. A religious approach to international order will endorse the position of most modern international jurists that sovereign independence is not to be made into an idol or a fetish, and that the tasks of order and peace in the world are not to be conceived as optional for sovereigns. But sovereigns also have their own mission, ordering particular communities of men and women. Lecture 3 considers the rival claims of natural law and positivism regarding sources of international law. The most telling part of natural law jurisprudence from Aquinas to Finnis has always been its insistence on the specific human need for positive law. This holds true in the international realm as much as in any realm of human order - perhaps more so, because law has to do its work unsupported by the overwhelming power of a particular state. Lecture 3 addresses, from a religious point of view, the sources of law in the international realm: treaty, convention, custom, precedent, and jurisprudence. It will focus particularly on the sanctification of treaties. -- No of Pages : 73 -- Keywords: customary international law, international law, ius cogens, nationalism, natural law, positivism, public reason, religion, self-determination, sovereignty, treaties -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  international_law  natural_law  positivism-legal  IR  IR_theory  diplomacy  international_organizations  legal_system  international_system  sovereignty  nation-state  nationalism  public_sphere  liberalism-public_reason  deliberation-public  decision_theory  customary_law  self-determination  national_interest  national_security  responsibility_to_protect  treaties  universalism  precedent  conflict_of_laws  dispute_resolution  human_rights  community  trust  alliances  politics-and-religion  jurisprudence  jurisdiction  downloaded  EF-add 
july 2014 by dunnettreader
Jeremy Waldron - Jurisprudence for Hedgehogs (2013) :: SSRN
NYU School of Law, Public Law Research Paper No. 13-45 -- The aims of this essay are, first, to present the jurisprudential position that Ronald Dworkin set out in his penultimate book, Justice for Hedgehogs (2011); and, secondly, to elaborate it a little further than Dworkin himself was able to. The position is a distinctive and interesting one. Although Professor Dworkin argued in all his earlier work that moral facts (about rights and justice) were among the truth conditions of legal propositions, now in Justice for Hedgehogs he argued that law is itself a branch of morality. This is a bolder and more radical claim and it requires some quite careful exposition to see how it might be made plausible. -- Number of Pages in PDF File: 32. -- Keywords: Dworkin, law, legislation, morality, natural law, positivism, Raz, separation thesis -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  legal_system  moral_philosophy  natural_law  positivism-legal  legislation  legal_validity  Raz  Dworkin  downloaded  EF-add 
july 2014 by dunnettreader
Jeremy Waldron - The Concept and the Rule of Law (2008) :: SSRN - Georgia Law Review, Forthcoming
NYU School of Law, Public Law Research Paper No. 08-5 -- This article explores and connects two issues: (1) the relation between the Rule of Law (or legality) and the work we do in general jurisprudence on the concept of law; and (2) the distinction between conceptions of the Rule of Law that emphasize certainty, rules, and predictability and conceptions of the Rule of Law that also emphasize procedure and argument, even when legal argumentation detracts from the certainty emphasized the first set of conceptions. It argues (1) in favour of a more demanding understanding of what law is (informed by the ideal of the Rule of Law) and against "casual positivism" that takes almost any instance of centralized command and control as a legal system. And it argues (2) in favour of a procedural and argumentative conception of the Rule of Law. It connects the two arguments by observing that casual positivism is commonly associated with an impoverished rule-oriented understanding of the Rule of Law is associated commonly; and (following Dworkin and MacCormick) it suggests that a jurisprudence that emphasizes the role of legal argumentation and the institutions that sponsor it, will inevitably bring our conceptions of law and legality very close together. -- Number of Pages in PDF File: 67 -- Keywords: general jurisprudence, Hart, legality, positivism, procedure, Rule of Law -- downloaded pdf to Note
article  SSRN  philosophy_of_law  political_philosophy  legal_validity  rule_of_law  positivism-legal  procedure-legal  Hart  institutions  decision_theory  governmentality  competition  downloaded  EF-add 
july 2014 by dunnettreader
Scott J. Shapiro - What is the Internal Point of View? (2006 working paper) :: SSRN
In "The Concept of Law," Hart showed that sanction-centered accounts of every stripe ignored an essential feature of law. This feature he termed the internal point of view. Seen from the internal point of view, the law is not simply sanction-threatening, directing, or predicting, but rather obligation-imposing. Though the internal point of view is perhaps Hart's greatest contribution to jurisprudential theory, this concept is also often and easily misunderstood. This is unfortunate, not only because these misreadings distort Hart's theory, but, more importantly, because they prevent us from appreciating the true infirmities of sanction-centered theories and the compelling reasons why they ought to be rejected. -- The internal point of view is the practical attitude of rule-acceptance - it does not imply that people who accept the rules accept their moral legitimacy, only that they are disposed to guide and evaluate conduct in accordance with the rules. The internal point of view plays four roles in Hart's theory: (1) it specifies a particular type of motivation that someone may take towards to the law; (2) it constitutes one of the main existence conditions for social and legal rules; (3) it accounts for the intelligibility of legal practice and discourse; (4) it provides a naturalistically acceptable semantics for legal statements. Finally, sanction-centered theories are unacceptable for three reasons: (1) they are myopic in that they ignore one of the motivations that people might have for obeying the law; (2) they are unable to account for the existence of legal systems; (3) they cannot account for the intelligibility of legal practice and discourse. --
paper  SSRN  philosophy_of_law  social_theory  intellectual_history-distorted  20thC  21stC  Hart  positivism-legal  sociology_of_law  legal_system  norms  normativity  obligation  moral_psychology  morality-conventional  moral_sentiments  punishment  reasons-internalism  reasons-externalism  downloaded  EF-add 
july 2014 by dunnettreader
Brian Leiter - The Demarcation Problem in Jurisprudence: A New Case for Skepticism :: SSRN - Oxford Journal of Legal Studies, Vol. 32, No. 1, Spring 2012
Legal philosophers have been preoccupied with specifying the differences between two systems of normative guidance - law and morality. Positivists such as Kelsen, Hart, and Raz propose a solution to this “Demarcation Problem” according to which the legal validity of a norm can not depend on its being morally valid, either in all or at least some possible legal systems. The proposed analysis purports to specify the essential and necessary features of law.... Yet the concept of law is an “artifact concept,” that is, a concept that picks out a phenomenon that owes its existence to human activities. Artifact concepts, even simple ones like “chair,” are notoriously resistant to analyses in terms of their essential attributes, precisely because they are hostage to human ends and purposes, and also can not be individuated by their natural properties. 20th-century philosophy of science dealt with a kindred Demarcation Problem: ...how to demarcate science from pseudo-science or nonsense. -- they sought to identify the essential properties of a human artifact (namely, science). They failed, and spectacularly so, which led some philosopher to wonder, “Why does solving the Demarcation Problem matter?” This essay develops the lessons for legal philosophy -- lest we want to become embroiled in pointless Fullerian speculations about the effects of jurisprudential doctrines on behavior, it is time to abandon the Demarcation Problem in jurisprudence. -- downloaded pdf to Note
article  SSRN  philosophy_of_law  20thC  21stC  Logical_Positivism  linguistic_turn  concepts  analytical_philosophy  essentialism  natural_kinds  modal_logic  moral_philosophy  moral_psychology  legal_system  positivism-legal  psychologism  natural_law  epistemology-social  epistemology-moral  Carnap  Hempel  Popper  Fuller  Hart  Kelsen  Raz  Finnis  normativity  moral_sentiments  reason-passions  reasons-internalism  reasons-externalism  downloaded  EF-add 
july 2014 by dunnettreader
Brian Leiter -The Radicalism of Legal Positivism (2010) :: SSRN - Guild Practitioner, 2010
U of Chicago, Public Law Working Paper No. 303 -- “Legal positivism” is often caricatured by its jurisprudential opponents, as well as by lawyers and legal scholars not immediately interested in jurisprudential inquiry. “Positivist” too often functions now as an “epithet” in legal discourse, equated (wrongly) with “formalism,” the view that judges must apply the law “as written,” regardless of the consequences. Lon Fuller, Ronald Dworkin, and the Critical Legal Studies writers have all contributed in different ways to the sense that "positivism" is either a political conservative or politically sterile position. This essay revisits the actual theory of law developed by positivist philosophers like Bentham, Hart, and Raz, emphasizing why it is, and was, understood by its proponents, to be a radical theory of law, one unfriendly to the status quo and anyone, judge or citizen, who thinks obedience to the law is paramount. To be clear, the leading theorists of legal positivism thought the theory gave the correct account of the nature of law as a social institution; they did not endorse it because of the political conclusions it entailed, and which they supported. Yet these theorists realized that the correct account of the nature of law had radical implications for conventional wisdom about law. We would do well to recapture their wisdom today. -- downloaded pdf to Note
article  SSRN  philosophy_of_law  intellectual_history  intellectual_history-distorted  18thC  19thC  20thC  positivism-legal  conservatism  radicals  Bentham  Hart  Raz  Critical_Legal_Studies  Dworkin  Fuller  natural_rights  moral_philosophy  political_philosophy  institutions  institutional_change  reform-legal  formalism-legal  judiciary  sociology_of_law  social_theory  social_order  downloaded  EF-add 
july 2014 by dunnettreader
Alex Langlinais, Brian Leiter - The Methodology of Legal Philosophy [chapter] (2013) :: SSRN - H. Cappelen, T. Gendler, & J. Hawthorne (eds.), Oxford Handbook of Philosophical Methodology, Forthcoming
U of Chicago, Public Law Working Paper No. 407 -- This is the revised and penultimate version of this paper. The essay surveys issues about philosophical methodology as they arise in general jurisprudence. Certainly in the Anglophone world and increasingly outside it, H.L.A. Hart’s 1961 book The Concept of Law has dominated the discussion. ...methodological debates typically scrutinize either one of two (related) ... claims in Hart’s classic work. The first is that his theory is both general and descriptive (Hart 1994: 239). The second is that his theory is an exercise in both linguistic analysis and descriptive sociology (Hart 1994: vi). We explicate both ideas, arguing, in particular, that (1) Hart aims to give an essentialist analysis of law and legal systems (a point clearest in those who follow him like J. Raz, J. Dickson and [though less of a follower] S. Shapiro), and (2) we can make sense of the linking of linguistic (and conceptual) analysis and descriptive sociology if we understand "law" as a constructed bit of "social reality" in something like John Searle's sense. The ensuing methodological debates in legal philosophy can then be understood as arguing against either linguistic or conceptual analysis (naturalists like B. Leiter), or against the idea of a purely descriptive jurisprudence (in different ways, J. Finnis, S. Perry, M. Murphy, L. Murphy, R. Dworkin). -- Keywords: H.L.A. Hart, methodology, descriptive jurisprudence, conceptual analysis, John Searle, legal philosophy -- downloaded pdf to Note
article  books  SSRN  philosophy_of_law  methodology  legal_theory  intellectual_history  social_theory  social_sciences-post-WWII  analytical_philosophy  sociology_of_law  concepts  constructivism  Hart  Raz  Dworkin  Finnis  Searle  natural_law  naturalism  positivism-legal  legal_realism  downloaded  EF-add 
july 2014 by dunnettreader
Brian Leiter - Naturalized Jurisprudence and American Legal Realism Revisited (2011 book symposium) :: SSRN - Law and Philosophy, 2011
U of Chicago, Public Law Working Paper No. 352 -- This is my reply to critics in a symposium issue of the journal Law & Philosophy (2011) devoted to my 2007 book NATURALIZING JURISPRUDENCE: AMERICAN LEGAL REALISM AND NATURALISM IN LEGAL PHILOSOPHY. The critics to whom I respond are: Julie Dickson (Oxford University), Michael Steven Green (College of William & Mary), and Mark Greenberg (University of California, Los Angeles). -- Keywords: legal realism, naturalism, jurisprudence, methodology -- downloaded pdf to Note
article  SSRN  philosophy_of_law  legal_system  legal_theory  legal_realism  positivism-legal  naturalism  methodology  downloaded  EF-add 
july 2014 by dunnettreader
Brian Leiter - Legal Realisms, Old and New :: SSRN (2012 Seegers Lecture in Jurisprudence) - Forthcoming in Valparaiso Law Review (2013)
“Legal Realism” now has sufficient cache that scholars from many different fields and countries compete to claim the mantle of the "Realist program": from political scientists who study judicial behavior, to the "law and society" scholars associated with the Wisconsin New Legal Realism project, to philosophers interested in a naturalized jurisprudence. But what does it mean to be a “legal realist”? What unites the two most famous “old” Legal Realisms — the American and the Scandinavian — with the “new legal realism” invoked, variously, by sociologists, anthropologists, and political scientists, among others? -- I argue that (1) American and Scandinavian Realism have almost nothing in common — indeed, that H.L.A. Hart misunderstood the latter as he did the former, and that the Scandinavians are closer to Hart and even Kelsen than they are to the Americans; (2) all Realists share skepticism about the causal efficacy of legal doctrine in explaining judicial decisions ("the Skeptical Doctrine") (though the Scandinavian skepticism on this score is not at all specific to the legal domain, encompassing all explanation in terms of norms); (3) American Realism almost entirely eschewed social-scientific methods in its defense of the Skeptical Doctrine, contrary to the impression given by much recent work by "new" legal realists; (4) the myth that the American Realists were seriously interested in social science derives mainly from two unrepresentative examples, Underhill Moore's behaviorism and Llewellyn's work with the Cheyenne Indians. -- Keywords: American legal realism, Scandinavian legal realism, Karl Llewellyn, Axel Hagerstrom, Alf Ross, naturalism, H.L.A. Hart, Hans Kelsen, judicial behavior
article  SSRN  philosophy_of_law  social_theory  intellectual_history  intellectual_history-distorted  legal_theory  legal_realism  social_sciences  anthropology  sociology_of_law  normativity  norms  causation  causation-social  positivism-legal  naturalism  social_process  judiciary  behavioralism  Hart  Kelsen  US_legal_system  downloaded  EF-add 
july 2014 by dunnettreader
Brian Leiter - Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence (2005) :: SSRN
Heavily cited -- U of Texas Law, Public Law Research Paper No. 34 -- For three decades now, much of the Anglo-American legal philosophy curriculum has been organized around something called the Hart/Dworkin debate, a debate whose starting point is Ronald Dworkin's 1967 critique of the seminal work of Anglophone jurisprudence in the twentieth-century, H.L.A. Hart's 1961 book, The Concept of Law. This essay reviews the Hart/Dworkin debate and argues that it no longer deserves to play the same organizing role in the jurisprudential curriculum of the twenty-first century that it played at the close of the twentieth: on the particulars of the Hart/Dworkin debate, Hart has emerged the clear victor, so much so that even the heuristic value of the Dworkinian criticisms of Hart are now in doubt. (Dworkin's quite recent polemic against legal positivism in the 2002 Harvard Law Review is also addressed briefly.) The significant philosophical challenges that face legal positivists are now different, often in kind, from the ones Dworkin made famous. These, I shall argue, fall into two broad categories: first, the correct account of the content of the rule of recognition and its relationship to the possibility of law's authority (the Hart/Raz debate); and second, the proper methodology of jurisprudence, a debate which aligns defenders of descriptive conceptual jurisprudence (like Hart and Raz) against two sets of opponents: natural lawyers like Finnis, Perry and Stavropoulos who challenge whether jurisprudence can be descriptive; and philosophical naturalists, like the present author, who question whether conceptual analysis is a fruitful philosophical method in jurisprudence (or elsewhere). -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  20thC  21stC  intellectual_history  positivism-legal  legal_realism  naturalism  natural_law  natural_rights  social_theory  social_sciences-post-WWII  Hart  Dworkin  Finnis  Raz  moral_philosophy  concepts  concepts-change  historical_change  analytical_philosophy  sociology_of_law  downloaded  EF-add 
july 2014 by dunnettreader
Brian Leiter - Marx, Law, Ideology, Legal Positivism (2014) :: SSRN
This essay -- for the UVA conference on "Jurisprudence and History" -- offers an account of Marx’s theory of history and his claim that law (and morality) are "ideological," and then asks what theory of law is adequate to explain the way the Marxist theory understands law in both its ideological and non-ideological senses. In Marx's theory we need to be able to say what law is in three contexts: (1) there are the laws that constitute the relations of production, i.e., the scheme of property rights in the existing forces of production; (2) there are the laws (and associated legal beliefs, e.g., "you are entitled to equal protection of the law") that are superstructural and ideological in the pejorative sense; and (3) there are the laws that are non-ideological and superstructural because they characterize the legal relations of a non-class-based, i.e., a communist, society. I explain these different senses of law in Marx's theory and then argue that legal positivism, unlike other views about the nature of law, gives us a sensible explanation of law for purposes of the Marxist theory of historical change. That fact, in turn, gives us another data point in favor of positivism as the only serious explanation of the concept of law. -- Keywords: Iegal positivism, Marx, Hart, Dworkin Finnis, ideology -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  social_theory  historiography  historical_sociology  historiography-19thC  historiography-Marxist  historical_change  legal_history  legal_system  ideology  property  property_rights  positivism-legal  Marx  Hart  Dworkin  Finnis  natural_law  natural_rights  rights-legal  legal_culture  legal_realism  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 - Radbruch's Formula and Conceptual Analysis :: SSRN - American Journal of Jurisprudence, Vol. 56, pp. 45-57, 2011 (last revised 2012 )
Minnesota Legal Studies Research Paper No. 12-13 -- Gustav Radbruch, in well-known work that appeared just after World War II, put forward a formula that stated that state-promulgated rules that are sufficiently unjust lose their status as valid law. Radbruch’s Formula has generally been understood as a claim about the nature of law, and recent variations of Radbruch’s Formula, like Robert Alexy’s “claim to correctness,” have similarly been characterized as offering a truth about the nature of law. Additionally, both Radbruch’s and Alexy’s theories have been presented as criticisms of, and alternatives to, legal positivism. An alternative understanding of the Formula (and its modern variations) is as (mere) prescriptions for judicial decision-making, and thus compatible with a variety of different conceptual theories of the nature of law, including legal positivism. This article shows the difficulties of understanding Radbruch’s Formula as it was presented and conventionally understood. In particular, the article focuses on the way that seeing the Formula as a claim about the nature of law leads to outcomes inconsistent with the basic reasons for the Formula. -- Keywords: Gustav Radbruch, Radbruch's Formula, Robert Alexy, Conceptual Analysis
article  SSRN  philosophy_of_law  analytical_philosophy  positivism-legal  natural_law  concepts  legal_theory  norms 
july 2014 by dunnettreader
Brian Bix - Raz on Necessity (last revised 2009 ) :: SSRN - Law and Philosophy, vol. 22, pp. 537-559 (2003)
The article uses Joseph Raz's work as the starting point for a general discussion of the role of necessity and essence in jurisprudence. Analytical legal theorists commonly assert (or assume) that they are offering conceptual truths, claims regarding attributes necessarily true of all legal systems. Is it tenable to speak about necessary truths with a humanly created institution like law? Upon closer investigation, the use of necessary truths in writers like Raz and Jules Coleman clearly differs from the way such terms are used in classical metaphysics, and even in contemporary discussions of natural kind terms. Nonetheless, theorists making conceptual statements regarding law are making significant and ambitious claims that need to be defended - for example, against naturalists like Brian Leiter, who doubt the value of conceptual analysis, and normative theorists like Stephen Perry, who argue that assertions about the nature of law require value-laden moral and political choices between tenable alternatives. -- downloaded pdf to Note
article  SSRN  philosophy_of_law  legal_system  legal_theory  analytical_philosophy  concepts  metaphysics  modal_logic  possible_worlds  universalism  universals  natural_kinds  natural_law  moral_philosophy  morality-objective  morality-conventional  normativity  essence  naturalism  legal_realism  philosophy_of_language  Raz  positivism-legal  downloaded  EF-add 
july 2014 by dunnettreader
Brian Bix - H.L.A. Hart and the Hermeneutic Turn in Legal Theory :: SSRN - Southern Methodist University Law Review, Vol. 52, pp. 167-199, 1999
Modern legal positivism developed in response to a belief in the possibility and the value of having a quasi-scientific descriptive theory of law. In recent decades, legal positivism has moved in a different direction, due to the influence of H.L.A. Hart's work, which introduced hermeneutic elements into legal positivism. This article examines the hermeneutic turn in legal theory, and its implication for legal positivism in particular, and analytical jurisprudence in general. Some critics have argued that the hermeneutic element introduced by Hart undermines the possibility of having a purely descriptive theory of law, or even that it undermines the ability of theorists to criticize the legal systems they are studying. These possibilities are considered, in the course of evaluating the views of Joseph Raz, John Finnis, Stephen Perry, H. Hamner Hill, and others. -- downloaded pdf to Note
article  SSRN  philosophy_of_law  intellectual_history  20thC  positivism-legal  hermeneutics  social_theory  sociology_of_knowledge  sociology_of_law  Hart  Raz  natural_law  moral_philosophy  legal_system  bibliography  downloaded  EF-add 
july 2014 by dunnettreader
Brian Bix - Legal Positivism and 'Explaining' Normativity and Authority (2006 last revised 2009) :: SSRN
American Philosophical Association Newsletter on Philosophy and Law, Vol. 5, No. 2, Spring 2006 -- Minnesota Legal Studies Research Paper No. 09-05 -- It has become increasingly common for legal positivist theorists to claim that the primary objective of legal theory in general, and legal positivism in particular, is "explaining normativity." The phrase "explaining normativity" can be understood either ambitiously or more modestly. The more modest meaning is an analytical exploration of what is meant by legal or moral obligation, or by the authority claims of legal officials. When the term is understood ambitiously - as meaning an explanation of how conventional and other empirical facts can give rise to moral obligations - as many legal positivist theorists seem to be using the phrase, the project is contrary to basic tenets of legal positivism, and has regularly led theorists to propose doubtful theories that ignore "is"/"ought" divisions. -- Keywords: legal positivism, analytical legal theory, natural law theory -- downloaded pdf to Note
article  SSRN  philosophy_of_law  analytical_philosophy  positivism-legal  natural_law  is-ought  normativity  moral_philosophy  morality-conventional  moral_sentiments  obligation  authority  legitimacy  constructivism  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
Brian Bix - Robert Alexy's Radbruch Formula, and the Nature of Legal Theory (2006) :: SSRN
Rechtstheorie, Vol. 37, pp. 139-149, 2006 -- Minnesota Legal Studies Research Paper 06-13 -- Gustav Radbruch is well known for a formula that addresses the conflict of positive law and justice, a formula discussed in the context of the consideration of Nazi laws by the courts in the post-War German Federal Republic, and East German laws in the post-unification German courts. More recently, Robert Alexy has defended a version of Radbruch's formula, offering arguments for it that are different from and more sophisticated than those that were adduced by Radbruch himself. Alexy also placed Radbruch's formula within a larger context of conceptual analysis and theories about the nature of law. Both Radbruch and Alexy claim that their positions are incompatible with legal positivism, and therefore count as a rejection (and perhaps, refutation) of it. This paper, presented at a Conference on the work of Gustav Radbruch, looks at Radbruch's formula and Alexy's version of it. It focuses not so much on the merit of the Radbruch-Alexy formula, as on its proper characterization, and its appropriate placement within the larger context of legal philosophy. The particular focus is the methodological question of what Radbruch and Alexy's formulations - and their strengths and weaknesses - can show us about the nature of theorizing about law. -- Keywords: Robert Alexy, Gustav Radbruch, legal positivism, natural law theory, nature of law, conceptual theories, unjust laws -- downloaded pdf to Note
article  SSRN  philosophy_of_law  intellectual_history  20thC  post-WWII  Germany  social_sciences-post-WWII  Nazis  analytical_philosophy  concepts  natural_law  moral_philosophy  positivism-legal  sociology_of_law  justice  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
Brian Bix - Legal Positivism (posted 2003) :: SSRN - BLACKWELL GUIDE TO THE PHILOSOPHY OF LAW AND LEGAL THEORY, Martin P. Golding & William A. Edmundson, eds., Blackwell, 2005
This article tries to present the jurisprudential school of thought, legal positivism, within a larger context than is usual in contemporary English-language discussions of that approach: (1) showing the intellectual and political contexts in which the movement began; (2) emphasizing the variety of theories that fit under that label (e.g., how the Kelsenian tradition varies significantly from the Hartian tradition); and (3) discussing how the future development of legal positivism will depend on its discussion of wider theoretical issues (e.g., the proper approach to social theory, and the use of conceptual analysis in philosophy). The article also summarizes the main criticisms of legal positivism, and gives an overview of the internal debate of inclusive legal positivism versus exclusive legal positivism. Note: This is a description of the paper and not the actual abstract -- downloaded pdf to Note
chapter  books  SSRN  philosophy_of_law  legal_system  legal_theory  legal_culture  intellectual_history  19thC  20thC  Germany  Anglo-American  positivism-legal  Kelsen  Hart  social_theory  sociology_of_law  analytical_philosophy  concepts  bibliography  downloaded  EF-add 
july 2014 by dunnettreader
Michael Steven Green - Kelsen, Quietism, and the Rule of Recognition (2008 last revised 2011) :: SSRN
Research paper to appear in THE RULE OF RECOGNITION AND THE UNITED STATES CONSTITUTION, Matthew D. Adler, Kenneth E. Himma eds., Oxford University Press, -- Sometimes the fact that something is the law can be justified by the law. For example, Sarbanes-Oxley is the law because it was enacted by Congress pursuant to the Commerce Clause. But eventually legal justification of law ends. The ultimate criteria of validity cannot themselves be justified by law. According to H.L.A. Hart, justification of these ultimate criteria is still available, by reference to social facts concerning official acceptance - facts about what Hart calls the "rule of recognition" for the system. Drawing upon criticisms of sociological accounts of the law that can be found in the writings of Hans Kelsen, I argue in this essay that Hart's approach cannot account for statements about the law that assert the independence of legal validity from rule of recognition facts. I offer as an alternative a legal quietist approach, which can account for such statements. For the quietist, legal justification exhausts the possible justification for law. If our judgments about the law are fundamental, in the sense that they cannot be justified by other judgments about the law, then they have no justification (which is not to say that they should be abandoned). I argue that legal quietism is exemplified - if somewhat imperfectly - in Kelsen's writings, and I end the essay by exploring some difficulties that the quietist approach must face. -- downloaded pdf to Note
article  intellectual_history  20thC  Germany  Anglo-American  legal_theory  positivism-legal  Hart  Kelsen  social_theory  sociology_of_law  downloaded  EF-add 
july 2014 by dunnettreader

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