Legal positivism

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Classical Legal Positivism in International Law Revisited

Classical Legal Positivism in International Law Revisited

That modern international law moves within this inherited frame is difficult to deny. Rather than revisit the assumptions upon which modern international law has been erected, the mod- ern discipline exists responding to a challenge of the denial of its autonomy according to a concept of legality ill-suited to ground any such claim. Classical jurists’ attempts to account for international law against this paradigm had built a ‘straw man’ figure of Austin’s theory as a denial of the law’s autonomy, without seeing its conceptual weakness as a tool by which to explain such autonomy in international law. Inter-bellum jurists distanced their own ap- proaches from a ‘straw man’ figure of classical legal positivism, without seeing how their own approaches adopted the same assumptions which had failed pre-war jurists. And it is of little surprise that the ‘modern positivism’ which characterises much of today’s mainstream scholarship has become vulnerable to a further, post-modern attack. As Koskenniemi has ar- gued, burying the knowledge of this theoretical incongruence behind a veil of institutional pragmatism, many modern jurists have assumed ‘that frustration about theory can be over- come by becoming technical, or doctrinal’. 123 In that sense, the scapegoat of a demonised classical legal positivism lives on in the modern psyche as the embodiment of the problem to which modern jurists are themselves unable to convincingly respond: the problem of legal autonomy in a world of sovereign states.
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Exclusive legal positivism and legal autopoiesis : towards a theory of dialectical positivism

Exclusive legal positivism and legal autopoiesis : towards a theory of dialectical positivism

Exclusive legal positivism is usually said to be sceptical to the role legal interpretation plays in deciding legal cases: in plain cases there is no need for interpretation, in hard cases the judge may find himself in a position where no answer is given by positive law and the creation of a new rule becomes necessary. Assuming that this stylised thesis reflects the basic positions of exclusivism, two scenarios are possible. Both ex- clude the necessity to apply morality to make up for the existing legal lacunas. The first scenario is descriptive, the second functional. The descriptive scenario is open to criticism from various non-positivist ap- proaches to law. It essentially reflects Ronald Dworkin’s semantic sting argument. 43 It relies on the common or, as Dworkin puts it, ‘preinter- pretative’ understanding of the word ‘law’. I will not analyse here the numerous counter-arguments raised against the ‘semantic sting’ argu- ment, 44 assuming that all non-positivists agree that law in its semantic, literal sense differs from what it should be from the perspective of mor- ality. Nobody denies that a formally valid legal norm can deviate from the principles of morality: 45 not all laws are morally good laws; some are morally bad law – at least observationally. The practical importance of the semantic argument should not be underestimated and trivialised since it often brings about very important legal consequences. The argu- ment from semantics, however, provides a satisfactory answer only to those exclusivists, who adhere to a monosemic nature of law – namely, that law has the meaning, which ought to be properly (most often, me- chanically) discovered and applied. Such an uncritical statutory obedi- ence to law is neither the main, nor even a dominant strand of exclu-
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One Myth of the Classical Natural Law Theory: Reflecting on the 'Thin' view of Legal Positivism

One Myth of the Classical Natural Law Theory: Reflecting on the 'Thin' view of Legal Positivism

of legal positivism, which includes the possibility of recognising actions of engagement with the law that are inert. Section 3 sets the stage for the critical discussion using the example of a fictional country called Dystopia where King Positus promulgates law with the aim of disseminating chaos in the lives of the citizens. The question we ask is, what enables an imaginary observer to recognise what Gardner calls “acts of engagement” with the law? In order to provide a plausible answer to this question, we argue in Sections 4 and 5 that Gardner’s thin conception of legal positivism presupposes an empirical view of human action, and that the sound conception of human action cannot be an empirical one. We adopt what we call Anscombe’s “institutional transparency thesis” defended in “On Brute Facts” (Anscombe 1958, 69) to show that the intelligibility of human action presupposes an institutional context but does not entail a description of that context. In Section 5 we continue with the example of Dystopia to show that an imaginary observer cannot know whether or not there is a legal system in Dystopia without understanding the purpose of an institution placed within an institutional context. This conception of action is purposeful as opposed to empirical. Section 6 argues that the paradigm or central-case methodology, as opposed to the necessary and/or sufficient conditions methodology, used to understand social practices, including law, has at its centre the nonempirical view that human action and its purpose is given rather than discovered. By means of this indirect argumentative strategy, one myth of classical natural law is therefore dispelled. We argue that classical natural law does not aim to discover through moral facts or moral ideals the suitable ends to the kind of creatures we are, because this is not the role played by ends in our practical reasoning and actions. On the contrary, ends are given, and our laws, games, ways of loving, thinking, enjoying, and living our lives all aim at better understanding these given ends.
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Exclusive legal positivism and legal autopoiesis : towards a theory of dialectical positivism

Exclusive legal positivism and legal autopoiesis : towards a theory of dialectical positivism

Exclusive legal positivism is usually said to be sceptical to the role legal interpretation plays in deciding legal cases: in plain cases there is no need for interpretation, in hard cases the judge may find himself in a position where no answer is given by positive law and the creation of a new rule becomes necessary. Assuming that this stylised thesis reflects the basic positions of exclusivism, two scenarios are possible. Both ex- clude the necessity to apply morality to make up for the existing legal lacunas. The first scenario is descriptive, the second functional. The descriptive scenario is open to criticism from various non-positivist ap- proaches to law. It essentially reflects Ronald Dworkin’s semantic sting argument. 43 It relies on the common or, as Dworkin puts it, ‘preinter- pretative’ understanding of the word ‘law’. I will not analyse here the numerous counter-arguments raised against the ‘semantic sting’ argu- ment, 44 assuming that all non-positivists agree that law in its semantic, literal sense differs from what it should be from the perspective of mor- ality. Nobody denies that a formally valid legal norm can deviate from the principles of morality: 45 not all laws are morally good laws; some are morally bad law – at least observationally. The practical importance of the semantic argument should not be underestimated and trivialised since it often brings about very important legal consequences. The argu- ment from semantics, however, provides a satisfactory answer only to those exclusivists, who adhere to a monosemic nature of law – namely, that law has the meaning, which ought to be properly (most often, me- chanically) discovered and applied. Such an uncritical statutory obedi- ence to law is neither the main, nor even a dominant strand of exclu-
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Democracy, the Constitution, and Legal Positivism in America: Lessons from a Winding and Troubled History

Democracy, the Constitution, and Legal Positivism in America: Lessons from a Winding and Troubled History

This Article explores the political and philosophical background of the current debate between positivist “originalism” and evolutionary “living constitutionalism” and, more generally, the significance of positivist ideas for both democratic and constitutional theory. Noting the tensions between positivist and nonpositivist ideas that existed in early American constitutionalism, it focuses on the impact of John Austin’s theory of legal positivism in the United States after the Civil War and the way successive generations of Americans interpreted positivist ideas to develop their theories of democracy and constitutionalism. It argues that Austin inspired rival jurisprudential approaches that quickly, but misleadingly, became entangled with opposing theories of democracy and constitutionalism. Positivist ideas subsequently became the instrument first of Progressives who criticized the “Lochner Court,” then of New Deal justices who preached “judicial restraint,” then of many critics of the Warren Court, and finally of the conservative originalists in the present day who broadly condemn “liberal judicial activism.” The Article shows that, as American politics changed over the years, so too did the alleged significance and practical uses of positivism for arguments about both democracy and constitutionalism. The Article concludes that positivism contributed— and is able to contribute—little to coherent normative theories of either democracy or constitutionalism but that it nonetheless has substantial practical value for both. Positivism’s emphasis on the social and
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Legal Positivism, Natural Law and the Constitution

Legal Positivism, Natural Law and the Constitution

The Irish legal system is thus inconsistent with normative legal positivism: the unenumerated rights doctrine leaves open the possibility that all unjust rules can be overturned once they are sought to be applied. The avoidance of an injustice is considered more important than the general need for law to have and maintain a determinate position that can be identified in a way that does not call for moral judgment. Of course, this does not just undermine the certainty of laws only when a particular law is overturned: it leaves open a standing possibility that any law can be overturned. The test for overturning such a law is “the Natural Law,” thereby directly engaging the type of moral disagreement that it is, on Waldron’s view, the function of law to avoid. If legal positivism is equated with normative legal positivism, it is accurate to say that the Irish Constitution rejects legal positivism as a jurisprudential guide. Normative positivism is a guide to the desirable content of a legal system. It emphasises certainty and the need to avoid moral disagreement in rule identification above all else. (Moral disagreement in rule creation, as noted above, is not a problem.) The Irish Constitution assuredly does not adopt this approach. As with all bills of rights, moral guarantees such as equality, respect for family and property rights invite moral disagreement in some form back into the identification of law. But the unenumerated rights doctrine went far further because it did not even identify any specific moral criteria that required to be interpreted.
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The politics of legal positivism : a reply to David Dyzenhaus

The politics of legal positivism : a reply to David Dyzenhaus

But this argument fails because Hart’s discretion thesis is neither a failure to deal with the practice of adjudication nor an attempt to exclude it from the domain of legal theory. On the contrary, it is a substantive attempt to deal with the practice by suggesting that it is in the nature of law that judges sometimes act as lawmakers. And Hart defended it at length in The Concept of Law, hardly an indication that he believes the explanation of judicial discretion to be outside the purview of legal theory. 39 That judges act as lawmakers in no way entails that adjudication is irrelevant to legal positivism. Dyzenhaus’ argument does of course make sense if it is presupposed that the task of legal theory is to explain why judges’ pro nouncements are authoritative statements of pre-existing rights and duties. But Hart is interested in the prior question of whether judges’ pronouncements have this character and it is by failing to answer it in the affirmative that he comes into conflict with Dyzenhaus. So the conception of legal theory implicit in Dyzenhaus’ argument bypasses the very question that Hart’s work on judicial discretion is supposed to answer — whether or not judicial decisions in hard cases are best understood as the determination of pre-existing rights and duties, or the creation of new ones. Dyzenhaus is, of course, at liberty to disagree with Hart on this point. But the only way to establish that disagreement is to argue that Hart is wrong. 40 Instead, he argues by simple sti pulation, that Hart’s argument is afflicted with a kind of theoretical illegitimacy.
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The Authority of International Law - A study in international legal positivism

The Authority of International Law - A study in international legal positivism

in itself is not enough to guarantee international law its general applicability and objectivity. Clausula rebus sic stantibus is meant to supplement pacta sunt servanda in such a way that, even though a change in the will occurs, international law remains applicable as long as the objective elements underlying a certain treaty haven’t changed. But the problem lies in the fact that international law’s applicability depends on the incorporation within the internal legal order and the extent to which it is enforced by individual states as there is no coercive institutionalized international legal order in place. Hence, if there is a change in the will of a given state and it no longer recognizes the objective elements underlying the treaty as one of its own purposes, there is no incentive to act in accordance with international law even though the objective elements have remained the same. Such a situation requires a coercive international legal order with the authority to enforce international rules against the will of a state. But in that case, the singular will of a state can no longer be regarded as the foundation of objective international law as there is a special will that stands above that of the state. Jellinek claims to have solved the voluntarist dilemma by introducing his idea of the binding free will of a state, but it is not entirely clear what guarantees international law’s authority and objectivity after it has come into being and is incorporated in the internal legal order.
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Legislative Intentions, Legislative Supremacy, and Legal Positivism

Legislative Intentions, Legislative Supremacy, and Legal Positivism

It is possible to reduce the preceding analysis to a few simple, if somewhat rough, propositions. It seems undeniable that statutes should not always be interpreted and applied literally. If so, their literal meanings must sometimes be modified or overridden for the sake of other values, intentions, or purposes. If these are the actual or presumed values, intentions, or purposes of the legislature, then legislative supremacy over statutes is preserved. The judicial role is that of an agent striving to interpret and apply statutes equitably, so as better to serve the legislature’s values, intentions, and purposes. If, instead, the judiciary can change or override the literal meanings of statutes to make them consistent with its own values, intentions, or purposes, then it has effective supremacy over statutes. Judicial supremacy can be described in natural law terms, which depict the judges as discovering and enforcing the “true law”—either what the statutes “really mean,” or some “higher law” that is superior to them. Or it can be described in legal realist terms, which depict the judges as exercising supreme legislative power according to political rather than legal criteria. Perhaps these different descriptions do not in the end signify any practical differences. Either way, the judicial power described is inconsistent with orthodox constitutional law in common law jurisdictions, including that of the United States. The important point is that legal positivists—and for that matter anyone else—who would prefer to steer clear of judicial supremacy over statutory law, should try to steer clear of skepticism about the existence and utility of legislative intentions and purposes.
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In Defense of Modern Legal Positivism

In Defense of Modern Legal Positivism

Hart has been assiduous in stressing the limited importance of legal validity." The presence of legal obligation is not, by any means, conclusive of questions [r]

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Legal Theory and the Variety of Legal Cultures

Legal Theory and the Variety of Legal Cultures

This brand of legal positivism is therefore much more prescriptive about the role of courts than is the first. Judges must confine themselves to looking for existing law to apply to fresh cases, and if the code or statute does not contain the answers, then for judicial purposes the matter is finished. The code commands him or her to deliver a solution that reflects the fact that the plaintiff does not have the law on her side, and hence that the defendant cannot be made to suffer on the basis of a solution that the judge thinks would be the right one to offer. If full justice is not achieved in such a case, because people like the defendant should, for moral reasons, be held accountable for what they did, then we are told that the solution is to be delivered at another time and in another place: where the will of the people is registered. 3 Future defendants of this type can then be caught by fresh law, and if the people will a retroactive application of law to the defendant, making him guilty now for what he was not liable for back when he did what he did, then Hart tells us that we are at least remaining clear that this is what is happening.
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ETHICAL POSITIVISM: A REPLY FOR LEGAL INJUSTICE

ETHICAL POSITIVISM: A REPLY FOR LEGAL INJUSTICE

Legal Positivism on the other hand, which is opposed to all forms of naturalism, is roughly constituted by three theoretical commitments: (i) the Social Fact Thesis, (ii) the Conventionality Thesis, and (iii) the Separability Thesis. The Social Fact Thesis (which is also known as the Pedigree Thesis) asserts that it is a necessary truth that legal validity is ultimately a function of certain kinds of social facts. The Conventionality Thesis emphasizes law's conventional nature, claiming that the social facts giving rise to legal validity are authoritative in virtue of some kind of social convention. The Separability Thesis, at the most general level, simply denies naturalism's Overlap Thesis; according to the Separability Thesis, there is no conceptual overlap between the notions of law and morality. 1
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The Connectivity of Administrative Acts in the Legal State and the Legal Order

The Connectivity of Administrative Acts in the Legal State and the Legal Order

Some authors have given the definition of the notion of legal state in the formal-legal aspect, while some others have supported the material-legal aspect. Thus, Friedrich Julius Stahli, has considered the concept of legal state in the formal- legal aspect, starting from the formal side of state actions. He considered that the most important thing is how the state power is applied and if it is regulated with legal norms. He has given the definition of legal state, which says:” The state has to be legal; this is the sign and the truth of the specific developments of new era. In the aspect of the right, it has to define and provide the ways and inviolable borders of its actions, and the sphere of the freedoms of its citizens. This is the notion of legal state, and not for the state to do something such as a legal regulation without an administrative goal or simply to protect individuals‟ rights, they are not a target in the contemporary state, but only a manner and character in which it will carry out”. According to Stahli, it is important for the judiciary to realize the idea of justice. The material side of legal state (moral, divine faith, justice etc.), although exists in a hidden way, in reality represents the condition of the principle of legal state. Stahli considers that a state can‟t be a real legal state if it doesn‟t present a realization of divine viewpoints and morality ideas. The critics of Stahli‟s views for the legal state
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The legal education   legal practice relationship: a critical evaluation

The legal education legal practice relationship: a critical evaluation

It has been argued that those charged with providing the lectures grew less and less inclined to provide them 98 . At the root of their objections were time and money- the lecturers could make money pursuing legal work in the time they might have given to education 99 , and students might also take on legal work rather than attend lectures. Intending lawyers were left to their own devices for their education 100 . They would learn through self-directed study 101 –learning law from books, and such observations they might make in court. Some might gain access to practitioners, making use of their libraries and potentially the expertise of the barrister they were accepted by. 102 Such education as there existed was entirely dependent on the will and resources of the individual student, if they were lucky aided by a supportive practitioner, or their fellows in one of the societies students set up. 103
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The Legal Innovation Matrix Legal market insight

The Legal Innovation Matrix Legal market insight

For buyers of legal services, the Legal Innovation Matrix provides insight on whether you actually need to buy legal services and if so, what type of provider to choose depending on the actual business need. Firstly, it allows you to better identify the real nature of your legal requirements. Do I need people, software, know-how, or a way to find legal service providers? What is the core essence of your legal query? Secondly, if you now know what you need, can you make it yourself (i.e. do you have the proper resources at hand) or should you buy it? In case of the latter, you can now better focus your search for a provider of legal services.
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Legal aid towards an understanding of our legal rights

Legal aid towards an understanding of our legal rights

nearest Legal l~id Bureau is situc:t,~d.,Rather the main ques td onjaaked by us is what rights do we have that would entitle us to legal redress, be it 'via the Legal Aid Bureau or other[r]

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Legal awareness and legal culture in the development of the institution of administrative and legal regulation of relations in the environmental field

Legal awareness and legal culture in the development of the institution of administrative and legal regulation of relations in the environmental field

The article deals with the correlation of legal awareness and legal culture of administrative and legal regulation of relations of environmental safety. These relations are governed by different branches of law, but this process is carried mostly by norms of administrative law. A particular attention is paid to the role of competent legal culture in the e�ercise of power, designed to perform the tasks and functions of the state. Functionaries should possess a high level of professionalism and sense of justice for the creation and implementation of normative acts of e�ecutive power. The influence of EU legislation on legal awareness in environmental safety can serve as an e�ample. Regulations aimed at regulating of social relations in the field of environmental security, issued by the state, should be legal, and not only fair, but also should be directed at the environmental protection. Ukrainian state bodies should be staffed by the functionaries who are rather competent in the field of ecology. Thus the role of sense of justice is primarily determined in the legal level, where the environmental knowledge, generated in the research field of social and in the sphere of the environmental law, has the significant impact on the attitudes of people and involves knowledge of nature process in their integrality.
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Religion and morality in the philosopy of education : a dissertation on the positivism of D J  O'Connor's "Introduction to the philosophy of education" with special reference to the final chapter

Religion and morality in the philosopy of education : a dissertation on the positivism of D J O'Connor's "Introduction to the philosophy of education" with special reference to the final chapter

If this is so then another question is raised: "Where are such statements, derived?" Using O'Connor's rather misleading terminology, the question is, "Where do moral codes cone from if t[r]

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Wind Energy: Legal Issues and Legal Barriers

Wind Energy: Legal Issues and Legal Barriers

Wind Energy Legal Issues and Legal Barriers SMU Law Review Volume 31 | Issue 5 Article 3 1977 Wind Energy Legal Issues and Legal Barriers Rita F Taubenfeld Howard J Taubenfeld Follow this and addition[.]

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Legal Transplants and Their Impact on Kosovo's Legal System

Legal Transplants and Their Impact on Kosovo's Legal System

However, what remains an issue is the imposition of various solutions by international actors without a transition in a narrow sense of the word. The main challenge is not only to adopt legal texts but adapting institutional mechanisms and its society to make the legislation work. The legislation must be a tool for effective rule of law. As stated in Organisation for Economic Cooperation and Development report: “the concept first and foremost seeks to emphasize the necessity of establishing a rule-based society in the interest of legal certainty and predictability.” 18
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