The author analyzes fictions of legal positivist philosophy and their role in the scientific legitimation of modern law and political domination. The original function of legalist fictions was the establishment of legal science, which would be autonomous and independent of other social sciences and public morality. In the second half of the 20th century, legal positivist philosophy has nevertheless adopted the fiction of the just law as its scientific legitimation fiction and incorporated moral and political discourse into legal science, again.Legal (...) positivism and its critiques within the discourse of the sociology of law and critical legal science keep the image of a hierarchical and centralized legitimation of law. Paradoxically, current legal philosophy and theory searching for a universally valid legitimation scheme is full of many different legitimations and reveals their growing plurality and the impossibility of establishing one sovereign legitimation scheme in the current social, theoretical and political condition. (shrink)

The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between “standard positivism” and “post‐Hartian positivism.” Then I will consider various kinds of relations between law and morality that are worthy of jurisprudential interest, and explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should (...) be taken into account, and what kind of such relations are indeed of no import at all. The upshot of this analysis consists in highlighting the distinction between two different dimensions of legal validity (formal validity and material validity respectively), and in pointing out that the positivist separability thesis can apply to formal validity only. On the other hand, when the ascertainment of material validity is at stake, some form of moral reasoning may well be involved (here and now, it is necessarily involved). The essay concludes with some brief remarks on the persisting importance of the positivist jurisprudential project. (shrink)

En este trabajo se analizan los límites que subyacen a toda discusión acerca del conflicto entre Tribunal Constitucional y Parlamento. Con este fin, el autor propone que una filosofía política adecuada debe ser capaz de combinar ciertos ideales, que le confieren su carácter normativo, con una adecuación a la realidad, que le da su perfil práctico. En este caso, para adecuarse a la realidad, cualquier teoría de la democracia deberá antes prestar atención a las circunstancias de la jurisdicción y las (...) circunstancias de la política. (shrink)

Legal positivism's ``separation thesis'' is usually taken in one of two ways: as an analytic claim about the nature of law – roughly, as some version of the Social Thesis; or as a substantive claim about the moral value of law – roughly, as some version of the Value Thesis. In this paper I argue that we should recognize a third kind of positivist separation thesis, one which complements, but is distinct from, positivism's analytic and moral claims. The Neutrality Thesis (...) says that the correct analytic claim about the nature of law does not by itself entail any substantive claims about the moral value of law. I give careful formulations of these three separation theses, explain the relationships between them, and sketch the role that each plays in the positivist approach to law. (shrink)

The debate on political constitutionalism has entirely neglected the constitution-making dimension. This is probably due to the fact that constitution-making usually brings with it undesirable outcomes such as the entrenchment of rights or structures. These outcomes do not respect reasonable disagreement among citizens because they violate the only fair system for settling disagreement: majority rule and equal voting rights. This article argues that political constitutionalists may regret the absence of any claim about constitution-making. Either they are overlooking certain problems inherent (...) to the electoral process that is supposed to tackle disagreement or, even worse, they are downplaying the entrenching effect of ordinary political processes by ignoring the redemptive properties of constituent power. In both cases, their claims undermine the political dimension of constitutionalism. (shrink)

Controversy surrounds the ‘intrusion’ of the discourse of rights into workplace relationships. This is explored by examining the nature of rights through the analysis of the idea of a ‘right to manage’. Purported justifications of the right to manage in terms of either property or contract are shown to be inadequate, thus illustrating the need to incorporate a degree of consequentialism in the articulation and justification of rights. The value of a rights-approach is argued to lie in the identification of (...) the morally relevant interests affected by management decisions and the correlative obligations of those involved in the workplace, rather than in the introduction of a special set of moral considerations distinctively connected with the idea of rights. (shrink)

The article presents a vision of the challenges to which contemporary legal positivism has to respond. The constitutionalisation that governs current legal systems offers a new framework in which to develop the classic controversy between positivism and iusnaturalism. This article analyses the different positivist proposals put before the reality of the constitutional state as well as its replies to the criticisms of those who consider it anoutdated theory of little use. Finally, it will also deal with the relationship between positivism (...) and legal realism. This relationship is increasingly close due to the uncertainty that characterizes no few legislative and constitutional clauses. (shrink)

The purpose of this article is to clarify the concept of “Anglo-American philosophy of law” and highlight the debate on its subject. Both the geographical reference to the Anglo-American tradition and the content of the philosophy of law itself need to be clarified. In order to understand what the Anglo-American philosophy of law is and what is the essence of the debate around its subject matter the author of the article firstly investigates the main stages in the development of the (...) Anglo-American philosophy of law, beginning with Jeremy Bentham and ending with modern authors. As a result, we arrive at a conclusion that the ways of development of the philosophical and legal tradition in Great Britain and the United States are not identical. Secondly, we should analyze the term “philosophy of law”. Overwhelming majority of Anglo-American scholars identify the terms “legal philosophy”, “jurisprudence” and “analytical legal positivism”. Therefore, “philosophy of law” and “jurisprudence” mostly are used as synonyms. It is also important that the concept “jurisprudence” in the Anglo-American Academy is not used in its wide sense as in Russian science. It includes only abstract theoretical, not practical, study of law and general legal concepts and theoretical foundations of branches of law and legal systems. The author concludes that the debate about the method that has been going on since the 50s of twenty century between positivists and anti-positivists, smoothly turned into a new dispute about the subject matter of Anglo-American philosophy of law. The main object of the dispute is the legal philosophy “analytical core”. Supporters of the core use a conceptual analysis of legal concepts beyond time, politics, morality, and social context. The author of the article analyzed the main critical papers devoted to the current state of the legal philosophy and came to the conclusion that we can distinguish two major types: papers that criticize the “analytical core” of the philosophy of law and try to separate pluralistic jurisprudence and limited abstract legal philosophy, papers which tend to change the very philosophy of law, reorienting it to the social context, political philosophy, ethics, etc. Also, as a result of the research two different understandings of the content of analytical philosophy of law were discovered. First on the one hand is analytical positivism, which includes legal positivists. On the other hand, in a broader sense, it is perceived as an intellectual style. In this sense we can call anti-positivists like natural lawyer J. Finnis and the founder of legal interpretivism, R. Dworkin as analytical scholars. (shrink)

In this thesis I outline a view of primary legislation from a systems perspective. I suggest that systems theory and, in particular, autopoietic theory, as modified by field theory, is a mechanism for understanding how society operates. The description of primary legislation that I outline differs markedly from any conventional definition in that I argue that primary legislation is not, and indeed cannot be, either a law or any of the euphemisms that are usually accorded to an enactment by a (...) parliament. I cite two reasons for such a conclusion. The primary reason for my conclusion is that I see primary legislation as being an output of a particular subsystem of society, while the law is the output of another subsystem of society. I argue that these outputs are the discrete products of separate subsystems of society. I argue that primary legislation should be viewed as a trinity. The first state of this trinity is that, upon enactment, primary legislation is a brute fact in that it is but a thing and the only property of this thing is that of being a text. The second state of this trinity is that following the act of enactment, the thing enacted will be reproduced and this reproduction is a separate thing that will sit in some repository until used. The third state of this trinity is that, upon use, this thing that is primary legislation will be transformed into an object and the user will attribute such functions and attributes to that object as are appropriate to the context within which the object is used. The thing has therefore become an object and an institutional fact. The second reason for my conclusion that primary legislation is not a law relates to the fact that the thing that is primary legislation is a text and the only function of a text is that it is available to be read. That is to say, of itself, a text is incapable of doing anything: it is the reader who defines the status of the text and attributes functions and attributes. Upon use, primary legislation thus becomes a censored input for future action and one of these actions may be some statement by a court of law. I assert that the view of primary legislation that has been accepted within the body politic is the product of the discourse of a particular subsystem of society that I have designated 'the legal practice', and I outline why and how this has occurred. Outlining a view about primary legislation also necessitates outlining a view as to the nature of the law. I assert that the law is a myth and I see this myth as a product of the discourse of the legal practice. I have asserted that although it is the judges that state the law, such statements flow from the discourse of those who practise the law. (shrink)