The main thesis of this article is that Kant’s concept of law is a non-positivistic one, notwithstanding the fact that his legal philosophy includes very strong positivistic elements. My argument takes as its point of departure the distinction of three elements, around which the debate between positivism and non-positivism turns: first, authoritative issuance, second, social efficacy, and, third, moral correctness. All positivistic theories are confined to the first two elements. As soon as a necessary connection between these (...) first two elements and the third element, moral correctness, is established, the picture changes fundamentally. Positivism becomes non-positivism. There exist two kinds of connections between law and morality: classifying and qualifying connections. This distinction stems from different sorts of effects that moral defects give rise to. A classifying connection leads to the loss of legal validity, whereas a qualifying connection leads only to legal defectiveness. In Kant’s theory of law both connections are found. The qualifying connection is conspicuous throughout Kant’s theory of law, whereas the classifying connection, by contrast, is rare and well hidden. This will suffice to consider Kant as a representative of inclusive non-positivism. (shrink)

This paper critically examines the relation between problems and the formation and development of concepts in Bergson’s work, as well as in Bachelard, Canguilhem and Deleuze. Building on work by Elie During, I argue that it is not only Bergson but also Deleuze who shares with the French epistemological tradition an “anti-positivist” conception of concept formation, founded upon the posing and solving of novel problems as opposed to the acquisition and verification of empirical facts. Contrary to During, however, I (...) argue that it is not Bergson but Deleuze who furnishes us with an “anti-positivist” conception of problems that is adequate to this anti-positivist conception of concept formation. Deleuze’s anti-positivist view of problems holds, firstly, that genuine problems require the creation of novel terms in which to state and solve them. He shares this view with Bergson, Bachelard and Canguilhem. Secondly, however, Deleuze holds that a problem’s “truth” is not to be evaluated with reference to its eventual solutions, nor with reference to some privileged and contentful experience of reality, but is rather a matter of its purely intrinsic productivity. (shrink)

There are two fundamentally different conceptions of the nature of constitutional rights: a positivistic conception and a non-positivistic conception. According to both, constitutional rights are part of the positive law. The difference is that in the positivistic conception, constitutional rights are only or exclusively positive law, whereas in the non-positivistic conception positivity represents but one side of constitutional rights, that is to say, their real or factual side. Over and above this, constitutional (...) rights, according to the non-positivistic conception, also have an ideal or critical dimension. This is not without reason. For as with all law, constitutional rights necessarily raise, in connection with principles theory, a claim to correctness. This claim to correctness leads to a necessary connection between constitutional rights understood as positive rights and human rights understood as moral rights, and, with this, to the dual nature of constitutional rights. (shrink)

In everyday speech, expressions of the type "that thing exists" are frequently employed. What do they mean? They must be dealt with at the logical level where we seek greater precision. Also at the philosophical level, the predicate "exists" stands in need of analysis, inasmuch as its meanings are associated in one way or another with the meanings of the term "reality." It might also be stated that every entity, to the degree that it is "real" in one sense or (...) another, exists in a manner distinctive to it. In this sense, one might say that this is a problem of cognition of the history of an object, and its results are set forth in various existential judgments. Nevertheless, analysis of "existence" precisely as a predicate is necessary. It bears a specifically logical character and, moreover, is related in a lesser degree to the purely linguistic side of things than in the case of analysis of the meanings of the predicate "to be.". (shrink)

This chapter contains sections titled: Jurisprudence: Method and Subject Matter Legality and Authority Positivism: Austin vs. Hart The Authority of Law Judicial Discretion Incorporationism and Legality Raz' s Theory of Authority Incorporationism and Authority Conclusion Postscript References.

This paper makes a conceptual prescription: it argues that judges and lawyers should adopt a positivist concept of law, on normative grounds. The positivist view, I will argue, is more consistent with reasonable disagreement and majority rule than nonpositivist views, offers a better view of law’s moral standing, and is more consistent with what Dworkin called ‘integrity’ than non-positivism. As the paper explains, this is an argument about what I call the ‘operative’ concept of law. As such, the argument avoids (...) potential problems for conceptual prescription, and shows why even those who adopt non-positivist views about the nature of law might accept it. (shrink)

In this collection of essays one of the preeminent philosophers of science writing offers a reinterpretation of the enduring significance of logical positivism, the revolutionary philosophical movement centered around the Vienna Circle in the 1920s and 30s. Michael Friedman argues that the logical positivists were radicals not by presenting a new version of empiricism but rather by offering a new conception of a priori knowledge and its role in empirical knowledge. This collection will be mandatory reading for any philosopher (...) or historian of science interested in the history of logical positivism in particular or the evolution of modern philosophy in general. (shrink)

In “How Facts Make Law” and other recent work, Mark Greenberg argues that legal positivists cannot develop a viable constitutive account of law that meets what he calls the “the rational-relation requirement.” He argues that this gives us reason to reject positivism in favor of antipositivism. In this paper, I argue that Greenberg is wrong: positivists can in fact develop a viable constitutive account of law that meets the rational-relation requirement. I make this argument in two stages. First, I offer (...) an account of the rational-relation requirement. Second, I put forward a viable positivist account of law that I argue meets this requirement. The account that I propose is a version of Scott Shapiro’s Planning Theory of Law. The version of Shapiro’s account that I propose combines (1) the account of concepts and conceptual analysis put forward by David Chalmers and Frank Jackson with (2) the account of the concept LEGAL INSTITUTION (and its conceptual connections to the concept LEGAL NORM) that we get from a certain reading of Shapiro’s Planning Theory. In addition to providing a compelling response to Greenberg’s argument in “How Facts Make Law,” I argue that the explanation for why my response to Greenberg works underscores one of the central problems facing legal antipositivism: namely, its lack of a convincing account of the nature of legal institutions. (shrink)

Nearly thirty years ago, Robert Alexy in his book The Concept and Validity of Law as well as in other early articles raised non-positivistic arguments in the Continental European tradition against legal positivism in general, which was assumed to be held by, among others, John Austin, Hans Kelsen and H.L.A. Hart. The core thesis of legal positivism that was being discussed among contemporary German jurists, just as with their Anglo- American counterparts, is the claim that there is no necessary (...) connection between law and morality. Robert Alexy has argued, however, that the law, besides consisting conceptually of elements of authoritative issuance and social efficacy, necessarily lays a claim to substantial correctness, which is derived from analytical arguments. Furthermore, if this claim to substantial correctness necessarily requires the incorporation of moral elements into law, then the ‘necessary connection thesis’, as defended by non-positivism, can be justified. Some of the most significant objections to this sort of claim, stemming from the Anglo-American world, are those introduced by Joseph Raz. In his ‘Reply’ to Robert Alexy, Raz raises at least three interesting criticisms, including, first, the ambiguity of ‘legal theory in the positivistic tradition’, second, the indeterminate formulations of the ‘separation thesis’, and, third, the necessary claim of law to legitimate authority as a moral claim. As a point of departure, I will argue that Raz’s three criticisms are misleading. For they do not enhance our understanding of the genuine compatibility or incompatibility between legal positivism and non-positivism. Despite the frequently reformulated theses of legal positivism and the various kinds of opponents responding thereto, the essential divergence between legal positivism and non-positivism was and remains the answer to the question of the relation between law and morality. Furthermore, I will clarify that in the strictest sense there can be three and only three logically possible positions concerning the relation between law and morality: the connection between them is either necessary, or impossible (i. e. they are necessarily separate), or contingent (i. e. they are neither necessarily connected nor necessarily separate). The first position is non-positivistic, while the latter two positions are, indeed, both positivistic, but in different forms: one may be called ‘exclusive’ legal positivism, the other ‘inclusive’ legal positivism. I will continue by showing that these three positions stand to one another in the relation of contraries, not contradictories, and that, taken together, they exhaust the logically possible positions concerning the relation between law and morality, never mind the tradition or authority from which these positions are derived. Raz mentions, however, many changeable formulations of the separation thesis, which even leads him to acknowledge ‘necessary connections between law and morality’. One who is trying to understand legal positivism would no doubt be puzzled by this claim. Nevertheless, I will argue that this is an alternative strategy of legal positivism, and it points to naturalistically oriented view. Although this necessary separation between law and morality, understood naturalistically, strikes one as strengthening the separation, in the end it leads to a weakened notion of necessity. This weakened necessary separation thesis, however, cannot be justified through the so-called claim of the law to legitimate authority, defended by Raz, for it is difficult to answer the question of whether a normally justified but factual authority can gain legitimate authority. Finally, the necessary connection between law and morality in a strong sense can still be justified by the claim of law to correctness, as per Alexy’s argument. (shrink)

Due to their acceptance of the verifiability principle, the only way left for logical positivists to argue for the meaningfulness of religious language was to accept some sort of emotivistic conception of it or to reduce it to the description of religious attitude. The verifiability principle, however, suffers from some severe limitations that make it inadequate as a criterion for cognitive meaning. To resolve these problems, logical positivists gave up the requirement of conclusive verifiability and defended a sort of (...) ‘liberalization’ of the verifiability principle. Carnap’s confirmability criterion for cognitive meaning, which is a liberalized form of the verifiability principle, is compatible with an orthodox conception of religious language since, from a theistic perspective, the existence of God can be confirmed through our observational statements. (shrink)

Martin highlights the degree to which H. L. A. Hart’s legal positivism relies on Hobbesian assumptions. Like Hart, Hobbes combines utilitarian and retributivist elements. The best way to make sense of Hobbes’s theory of punishment is to follow Quentin Skinner and view both the “sovereign” and the “state” as distinct legal fictions. Unlike Hobbes, Hart asserts these fictions as facts. As a result, Hart’s philosophy of criminal law in Punishment and Responsibility is in tension with his legal philosophy in The (...) Concept of Law. Martin worries that Hart’s mixed theory is untenable: the utilitarian element threatens to overtake his core retributivist thesis. Ultimately, however, neither Hart nor Hobbes has the resources to explain why the autonomous individual matters in the context of criminal law. (shrink)

The roles of classical realism, logical positivism, and pragmatic instrumentalism in the shaping of fundamental ideas in quantum physics are examined in the light of some recent historical and sociological studies of the factors that influenced their development. It is shown that those studies indicate that the conventionalistic form of instrumentalism that has dominated all the major post-World War II developments in quantum physics is not an outgrowth of the Copenhagen school, and that despite the “schism” in twentieth century physics (...) created by the Bohr-Einstein “disagreements” on foundational issues in quantum theory, both their philosophical stands were very much opposed to those of conventionalistic instrumentalism. Quotations from the writings of Dirac, Heisenberg, Popper, Russell, and other influential thinkers, are provided, illustrating the fact that, despite the various divergencies in their opinions, they all either opposed the instrumentalist concept of “truth” in general, or its conventionalistic version in post-World War II quantum physics in particular. The basic epistemic ideas of a quantum geometry approach to quantum physics are reviewed and discussed from the point of view of a quantum realism that seeks to reconcile Bohr's “positivism” with Einstein's “realism” by emphasizing the existence of an underlying quantum reality, in which they both believed. This quantum geometry framework seeks to introduce geometro-stochastic concepts that are specifically designed for the systematic description of that underlying quantum reality, by developing the conceptual and mathematical tools that are most appropriate for such a use. (shrink)

The most influential critique of the Logical Positivists’ analysis of scientific observation was posed by Paul Feyerabend in his classic essay, “Explanation, Reduction, and Empiricism”. Feyerabend countered the later Positivist conception with his so-called ‘Pragmatic Theory of Observation’ which was founded on two ideas. The first is that observation reports are ‘theory-laden’, in the sense that they are always interpreted in the light of the best current theory and are subject to reinterpretation when one theory succeeds another. Feyerabend traced (...) the development of this idea in the early writings of the Positivists, especially Rudolf Carnap, in the classic discussion of protocol sentences. In that context, Feyerabend finds that the theory-ladenness of observation leads inexorably to the second idea of the Pragmatic Theory, that what counts as an observation report does not depend on either its empirical content or its logical form, but on its causal or pragmatic features. (shrink)

In this article, I distinguish between a moral and a strictly legal conception of legal normativity, and argue that legal positivists can account for law's normativity in the strictly legal but not in the moral sense, while pointing out that normativity in the former sense is of little interest, at least to lawyers. I add, however, that while the moral conception of law's normativity is to be preferred to the strictly legal conception from the rather narrow viewpoint (...) of the study of law's normativity, it is less attractive than the latter from the broader viewpoint of the study of the nature of law. I then distinguish between a moral and a strictly legal conception of the normative force of legal justification, and argue that legal positivists may without contradiction embrace the moral conception, and that therefore the analysis of the normative force of legal justification need not be a problem for legal positivists. I conclude that, on the whole, we have reason to prefer legal positivism to natural law theory. I begin by introducing the subject of jurisprudence . I then introduce the natural law/legal positivism debate, suggesting that we ought to understand it as a debate about the proper way to explicate the concept of law . I proceed to argue that legal decision‐making is a matter of applying legal norms to facts, and that syllogistic reasoning plays a prominent role in legal decision‐making thus conceived . Having done that, I discuss law's normativity , the normative force of legal justification , and the relation between the former and the latter . I conclude with a critical comment on Joseph Raz’ understanding of the question of law's normativity. (shrink)

What I want to focus on in this paper is the question of the connection between the positivism of the Vienna Circle — the "scientific conception of the world" — and politics. The Vienna Circle will be considered first ''als soziale Bewegung'' and second from the point of view of "Sozialforschung". The paper is a case study in the problem of the relation of a theory to practice, and more particularly, of the relation of a technical epistemological and methodological (...) theory of science to social practice. The critical assessment of the nature of the Vienna Circle as a social movement starts from the consideration of the views of Otto Neurath; and concludes with some theses about the failure of this social movement precisely as it relates to the logical positivist and logical empiricist theory of science, and to its scientific conception of the world. (shrink)

What I want to focus on in this paper is the question of the connection between the positivism of the Vienna Circle — the "scientific conception of the world" — and politics. The Vienna Circle will be considered first ''als soziale Bewegung'' and second from the point of view of "Sozialforschung". The paper is a case study in the problem of the relation of a theory to practice, and more particularly, of the relation of a technical epistemological and methodological (...) theory of science to social practice. The critical assessment of the nature of the Vienna Circle as a social movement starts from the consideration of the views of Otto Neurath; and concludes with some theses about the failure of this social movement precisely as it relates to the logical positivist and logical empiricist theory of science, and to its scientific conception of the world. (shrink)

The purpose of this paper is to undermine Paul Feyerabend's claim, which is crucial to the success of his analysis of Positivism, that the Pragmatic Theory of Observation was first developed by Rudolf Carnap in his early discussions of protocol sentences. Rather, it will be argued that Carnap's conception of protocols was founded on considerations drawn from his conception of language so that Carnap's reasons for endorsing certain aspects of the Pragmatic Theory are nothing like Feyerabend's. Moreover, Carnap (...) never approved the final conclusion of the Pragmatic Theory, that observational reports are distinguished by their causes. These historical conclusions provide the basis for arguing that, despite Feyerabend's critique, Carnap's later views (in "The Methodological Character of Theoretical Concepts") clearly countenance theoretical influences on observational statements. (shrink)

I argue that the analytic method has been circularly used to analyze the concept of “philosophy,” and that the result of this analysis has also been used to criticize African ethnophilosophy as nonphilosophical. I critically examine the criticism that ethnophilosophy implies cognitive relativism and the criticism that it implies authoritarianism. I defend ethnophilosophy against these criticisms, arguing that they are rooted in logical positivism, the view that philosophy essentially involves the use of the methods of science and logical analysis. I (...) argue that such analysis and criticisms, given their pedigree, do not provide an adequate or accurate picture of the nature of philosophy. (shrink)

The concept of “style of thought” or Denkstil is today probably primarily associated with the Polish microbiologist and philosopher of science Ludwik Fleck and his writings from the 1930s. It was however used quite extensively already by Karl Mannheim in his writings on the sociology of knowledge from the 1920s. Quite interestingly, the concept of style of thought was also used twice by Rudolf Carnap in the preface to Der logische Aufbau der Welt from 1928. No doubt, the concept must (...) have been in the air during the interwar period. In what follows I will characterize the early positivism in Nordic philosophy in terms of a certain style of thought or as a certain habitus of thought. I will single out six basic convictions about philosophy and how to do philosophy that make up a more or less common ground and starting point for the early philosophical positivists in the Nordic countries. However, to begin with I will motivate why I prefer to use the designation “the positive spirit” rather than “positivism”. In the latter part of the article I will then dwell on some more specifi c topics and fi gures relating to the positive spirit or positivism before Logical positivism in Nordic philosophy. (shrink)

Although Auguste Comte is conventionally acknowledged as one of the founders of sociology and as a key representative of positivism, few new editions of his writings have been published in the English language in this century. He has become virtually dissociated from the history of modern positivism and the most recent debates about it. Gertrud Lenzer maintains that the work of Comte is, for better or for worse, essential to an understanding of the modern period of positivism. This collection provides (...) new access to the work of Comte and gives practitioners of various disciplines the possibility of reassessing concepts that were first introduced in Comte's writings. Today much of the ordinary business of academic disciplines is conducted under the assumption that the realm of science is essentially separate from the realms of politics and science. A close reading of Comte will reveal how deeply such current ideas and theories were originally embedded in a particular political context. One of his central methodological principles was that the theory of society had to be removed from the arena of political practice precisely in order to control that practice by means of these same sciences. It is in Comte's work that the reader will be able to observe how the forces of social and political reaction began to be powerfully organized to combat the critical forces in its own and later eras. Auguste Comte and Positivism will be of importance to the work of philosophers, sociologists, political theorists, and historians. (shrink)

The verifiability principle was the characteristic claim of a group of thinkers who called themselves the Vienna Circle and who formed the philosophical movement now known as logical positivism. The verifiability principle is an empiricist criterion of meaning which declares that only statements that are verifiable by —i.e., logically deducible from— observational statements are cognitively meaningful. -/- This essay is a short introduction to the philosophical movement of logical positivism and its formulation of the verifiability principle. Its primary aim is (...) to provide students of philosophy with an accessible first overview of this philosophical movement. -/- After pointing out some aspects of the philosophical background of logical positivism (section 1), I will comment on the reasoning that lead these authors to formulate the verifiability principle (section 2), and I will analyse the debate about how to understand observational language and how observational statements (the so-called ‘protocol statements’) are verified (section 3). I will also comment on the two main consequences of accepting the verifiability principle: the conception of philosophy as the task of logical analysis and the project of unified science (section 4), and I will explain the different views on ethical language defended by logical positivists (section 5). I will end this essay by identifying the main problems of the verifiability principle and I will explain the core ideas of Carnap’s confirmability criterion, which attempts to resolve these problems (section 6 and 7). (shrink)

This paper argues that Susan James' definition of rights as 'enforceable claims' suffers from key faults based in its descriptive approach to a normative and evaluative concept (rights). James cannot explain key and valuable functions of the concept of rights as action-guiding and reason-giving, and some upshots of the view are inconsistent with the reasons one would appeal to rights as a distinctive concept. On her view it is difficult to explain how a right can be violated, given that violation (...) appears to imply lack of effective enforcement. (shrink)

The two most antagonistic schools in contemporary Western philosophy are Existentialism and Logical Positivism. They have nothing in common but the name of philosophy, and even that they deny each other. There is some kind of discussion going on between even such distant schools as Pragmatism and neo-Thomism; Existentialists and Logical Positivists have nothing but sarcasms for each other. To philosophers familiar only with the Anglo-Saxon scene Existentialism must appear negligible. In the Mediterranean countries, on the other hand, where philosophy (...) is a much more popular pastime, Existentialism has an unparalleled vogue and Logical Positivism is considered a horrible aberration from the naturally speculative course of philosophy. In South America whose philosophical life we are apt to underrate Logical Positivism seems to be known to almost nobody, whereas Existentialism, mostly in its German and anti-religious shape, has become, quite paradoxically, the rallying point of “Liberalism,” liberalism, in Spanish countries, being above all anti-catholicism. Although, ironically enough, both Logical Positivism and modern Existentialism originated in German speaking countries, the split between the two goes vaguely parallel with, and may have found some ready echo in, the different cultural inheritance of the Anglo-Saxon and Latin races. Hence, the subject of this paper would seem far-fetched to those steeped in their own national tradition. There is, however, a growing consciousness of the “one world” function of philosophy, particularly with regard to Eastern and Western philosophy. Would it not be a prerequisite of this more ambitious enterprise to gain a clear conception about the most radical split in our own contemporary Western philosophy, the split between Logical Positivism and Existentialism? This paper is an attempt to establish a perspective permitting a just evaluation of the two philosophies. (shrink)

In The Concept of Law, H. L. A. Hart propounds three central theses about the nature of law: a standard of behavior is a law in a society S if and only if that standard has been promulgated in accordance with the procedures specified in S's rule of recognition ; there are no necessary substantive moral constraints on the content of law ; and judges have discretion in hard cases to base their decisions on extralegal standards; thus, judges decide hard (...) cases by creating new law and not by applying existing law . ;Despite the apparent simplicity of Hart's positivism, it has been the subject of fierce controversy. In "The Model of Rules I," Ronald Dworkin argues that judges are bound in hard cases to consider legal principles that derive their authority from, as Dworkin puts it, "a sense of appropriateness developed in the profession and the public over time." Thus, he concludes that two of Hart's theses are false. First, since the authority of such principles does not depend on their having been promulgated in accordance with the requirements of the rule of recognition, Hart's Pedigree Thesis is false. Second, since judges are always bound by these principles in hard cases, Hart's Discretion Thesis is false. ;In my dissertation, I consider a number of attempts to defend Hart's positivism from Dworkin's criticisms. I show that Hart would reject each of these attempts as involving an unacceptable modification of his version of the Pedigree Thesis. Additionally, I argue that, contra Dworkin, the authority of legal principles derives from their having been declared by judges in the course of deciding hard cases. Accordingly, I conclude that the validity of legal principles is consistent with Hart's version of the Pedigree and Discretion Theses. (shrink)

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that (...) may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between law and morality, and has even been tempted by natural law arguments in developing his theory of jurisprudence (see Part IV), Kelsen is more receptive to arguments drawn from legal and political realism. Yet Habermas is hardly oblivious to these arguments, as can be seen from his recent acknowledgment that human rights that secure subsistence and development depend on ‘global domestic policy’ for their full enjoyment. This acknowledgment, I submit, brings Habermas’ legal philosophy closer to Kelsen’s monistic view that a supranational human rights regime must regulate political as well as purely legal matters (Part III). Given this stronger analogy between domestic and global institutions of governance, I argue (Part IV) that a global human rights regime must also incorporate features of constitutional review. Conceding this point, however, raises further questions about the insulation of international law from so-called extra-legal (political) influences. I conclude that not only do multicultural differences in understanding human rights (conflicts between legal paradigms) generate political problems for international courts but so do competing subsystems of international law. (shrink)

The modern lawyer operates within a conception of law as a body of rules. To confront the law of contract, of torts, or of property, is to familiarize oneself with an intricate set of rules. Such familiarity is not yet legal scholarship, much less legal practice. For in order to use the rules as lawyers use them, the rules must be contemplated and considered, and the relationship between the different rules must be understood. Because the intellectual processes involved in (...) handling the rules exhibit a high degree of sophistication, those intellectual processes may themselves become the subject matter of philosophical argument. Thus we may regard jurisprudential theories as embodying differing understandings of the processes of handling legal rules; and we may conceive of legal theory as the attempt to grasp the moral significance of rules as a foundation for social order. This essay shall offer some thoughts on the relationship between the rule of law, considered as a moral ideal, and the notion of rules as the principal means by which legal order is manifested. (shrink)

In this paper I put forward some arguments in defence of inclusive legal positivism . The general thesis that I defend is that inclusive positivism represents a more fruitful and interesting research program than that proposed by exclusive positivism . I introduce two arguments connected with legal interpretation in favour of my thesis. However, my opinion is that inclusive positivism does not sufficiently succeed in estranging itself from the more traditional legal positivist conceptions. This is the case, for instance, with (...) regard to the value-freedom principle, which is commonly accepted by inclusive positivist scholars. In contrast with this approach, I try to show, in the concluding section, how a constructivistic version of inclusive positivism could legitimately acknowledge the presence of value-judgments in the cognitive activities of jurists and legal theorists. (shrink)

Husserl’s phenomenology opens itself with a critique of positive sciences. Husserl problematizes the hardcore presupposition of positivism that the world is a definite sort of an existential totality of objects and thus it is exhaustible with empirical data and deductive-conceptual abstraction on the basis of causalspatio-temoprality. Criticizing the wholesome reduction of nature into a physical reality and the instrumentalizing of theoretical reason, he proposes transcendental phenomenology, as an ideal form of science. Self-entitled as the genuine science, the science of origin, (...) the science of all sciences, etc., it concerns itself with the matter of validity. Claiming that validating objectivity as such and the meaning of scientific objectification is something of which onlyphenomenological reflection on pure consciousness is capable and that the positivistic objectivity is and must be founded on transcendental subjectivity, Husserl radically idealistically revised the whole positivistic concept of evidence and givenness of a fact and substituted it with the phenomenological notion of apriori self-evidence and originary givenness of primordial intentional consciousness. Nevertheless, it is noticed that the absolute universal validity of positivistic objectivity was never rejected or questioned; objectivity is still in and of itself an absolute criterion of scientificity in Husserl. This paper will argue that the idealistic turn toward subjectivity takes place through factualization of transcendentality and this, by bestowing apriori apodicticity with facticity, even enhances more the supreme epistemological function of positivity. It will discuss such positivistic drive, directly bequeathed from the very cultural ethos at which phenomenological criticism targeted, as an important locomotive for Husserl’s program and point out an antinomical consequence with which it is to be faced as a consequence. (shrink)

The concept of legal obligation is utterly central to legal practice. But positivism lacks a comprehensive account of legal obligation, focusing only on the second-order recognition obligations of officials with no account of the first-order legal obligations of citizen. As legal obligations are conceptually related to legally valid norms, this failure calls into question positivism’s theory of legal validity. In this essay, I develop Hart’s account of social obligation and supplement his account of the second-order legal obligations of official qua (...) official with an account of the first-order obligations of citizens. The latter is constituted, I argue, by social pressure in the form of the authorization of the state’s coercive machinery for non-compliance.Resumen:El concepto de obligación jurídica es completamente central para la práctica jurídica. Sin embargo, el positivismo carece de una explicación integral de la obligación jurídica, puesto que se concentra solamente en el reconocimiento de obligaciones de segundo orden que recaen sobre los oficiales, y no explican las obligaciones jurídicas de primer orden que recaen sobre los ciudadanos. Cuando las obligaciones jurídicas se relacionan conceptualmente con normas válidas jurídicamente, el error de no tener una explicación integral de la obligación jurídica pone en crisis la teoría positivista de la validez jurídica. En este ensayo se desarrolla la explicación hartiana de la obligación social y se complementa su explicación de las obligaciones jurídicas de segundo orden del oficial en su calidad de oficial con una explicación de la obligación de primer orden de los ciudadanos. Esta última se constituye, argumenta el autor, por la presión social en la forma de la autorización que tiene el Estado de echar a andar la maquinaria coercitiva si no se cumple con la obligación. (shrink)

At the heart of this book is the age-old question of how law and morality are related. The legal positivist, insisting on the separation of the two, explicates the concept of law independently of morality. The author challenges this view, arguing that there are, first, conceptually necessary connections between law and morality and, second, normative reasons for including moral elements in the concept of law. While the conceptual argument alone is too limited to establish a sufficiently strong connection between law (...) and morality, and the normative argument alone fails to address the nature of law, the two arguments together support a nonpositivistic concept of law, toppling legal positivism qua comprehensive theory of law. (shrink)

Research design is fundamentally central to all scientific endeavors, at all levels and in all institutional settings. This book is a practical, short, simple, and authoritative examination of the concepts and issues in interpretive research design, looking across this approach's methods of generating and analyzing data. It is meant to set the stage for the more "how-to" volumes that will come later in the Routledge Series on Interpretive Methods, which will look at specific methods and the designs that they require. (...) It will, however, engage some very practical issues, such as ethical considerations and the structure of research proposals. Interpretive research design requires a high degree of flexibility, where the researcher is more likely to think of "hunches" to follow than formal hypotheses to test. Yanow and Schwartz-Shea address what research design is and why it is important, what interpretive research is and how it differs from quantitative and qualitative research in the positivist traditions, how to design interpretive research, and the sections of a research proposal and report. (shrink)

Legal anti-positivism is widely believed to be a general theory of law that generates far too many false negatives. If anti-positivism is true, certain rules bearing all the hallmarks of legality are not in fact legal. This impression, fostered by both positivists and anti-positivists, stems from an overly narrow conception of the kinds of moral facts that ground legal facts: roughly, facts about what is morally optimific—morally best or morally justified or morally obligatory given our social practices. A less (...) restrictive view of the kinds of moral properties that ground legality results in a form of anti-positivism that can accommodate any legal rule consistent with positivism, including the alleged counter-examples. This form of “inclusive” anti-positivism is not just invulnerable to extensional challenges from the positivist. It is the only account that withstands extensional objections, while incorporating, on purely conceptual grounds, a large part of the content of morality into law. (shrink)