In this paper, I argue against international normative positivism, i.e., against the idea that the separation of international legal judgement from moral reasoning is not only possible, but also a...

This chapter discusses two different issues about the relationship between legal positivism and robust normativity (understood as the most authoritative kind of normativity to which we appeal). First, the chapter argues that, in many contexts when discussing “legal positivism” and “legal antipositivism”, the discussion should be shifted from whether legal facts are ultimately partly grounded in moral facts to whether they are ultimately partly grounded in robustly normative facts. Second, the chapter explores an important difference within the (...) kinds of arguments that legal philosophers give for the (purported) truth of legal positivism. The difference concerns whether (purportedly) robustly normative facts are appealed to as premises in those arguments or not. (A closely connected issue is whether (purportedly) normative facts that bear one or more important connections to robustly normative facts are appealed to in premises to those arguments.) The chapter argues that thinking about this dividing line helps people better situate the positivist/antipositivist dispute, better understand the space of views in legal philosophy, better evaluate those views, and avoid having merely verbal disputes. (shrink)

In this paper, I deploy an argument that I have developed in a number of recent papers in the service of three projects. First, I show that the most influential version of legal positivism – that associated with H.L.A. Hart – fails. The argument’s engine is a requirement that a constitutive account of legal facts must meet. According to this rational-relation requirement, it is not enough for a constitutive account of legal facts to specify non-legal facts that modally determine (...) the legal facts. The constitutive determinants of legal facts must provide reasons for the obtaining of the legal facts (in a sense of “reason” that I develop). I show that the Hartian account is unable to meet this requirement. That officials accept a rule of recognition does not by itself constitute a reason why the standards specified in that rule are part of the law of the community. I argue that it is false that understanding the explanatory significance of officials’ acceptance of a rule is part of our reflective understanding of the nature of law. The second project of the paper is to respond to a family of objections that challenge me to explain why normative facts and descriptive facts together are better placed to provide reasons for legal facts than descriptive facts alone. A unifying theme of the objections is that explanations have to stop somewhere; descriptive facts, it is suggested, are no worse a stopping place than normative facts. Third, the paper spells out a consequence of the rational-relation requirement: if an account of what, at the most basic level, determines legal facts is true in any possible legal system, it is true in all possible legal systems. For example, if a Hartian account of legal facts is true in any possible legal system, it is true in all possible legal systems. I use this all-or-nothing result in my critique of a Hartian account, but the result is of interest in its own right. (shrink)

ABSTRACTThe aim of this article is to see whether we can account for the normativity of law within the framework of legal positivism and whether the idea of a social convention could be of help in this endeavour. I argue, inter alia, that we should distinguish between the problem of accounting for the normativity of law, conceived as a necessary property of law, and the problem of accounting for the use of normative legal language on the part of (...) legal actors; that the debate about the normativity of law, which mainly concerns, is more or less identical to the debate between legal positivists and non-positivists; that one cannot account for the normativity of law, conceived along the lines of, within the framework of legal positivism, and that the question of the normativity of law considered within the framework of legal positivism is not an open question. (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)

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. (shrink)

During its hundred-year history, Ludwig Wittgenstein’s Tractatus Logico-Philosophicus has undergone a variety of interpretations and explanations. But the significance of this work cannot be limited to an assessment of whether it had an impact on the development of logical positivism or not. Similarly, the reading of Tractatus cannot be reduced to just an ethical or some other readings. This article proposes to study a possible reading of “Tractatus” in terms of legal philosophy, which is based on the relation between (...) facts, values and norms, as well as on how interesting it could be (or would be) for legal philosophy. (shrink)

Positivismo jurídico normativo: de la metafísica a la política El presente trabajo toma como punto de partida el libro Positivismo jurídico “interno”, de María Cristina Redondo, y propone una concepción alternativa de positivismo jurídico normativista. Se sostiene que la teoría del derecho puede ser neutral en la medida en que sea intersubjetiva y transparente en cuanto a sus propias premisas metafísicas. Los objetivos del trabajo son el de echar luz acerca del papel de la metafísica y del sentido común en (...) la construcción del concepto de derecho, y el de hacer más abiertamente transparentes las elecciones ético-políticas que constituyen a los discursos jurídicos, incluidos los teóricos. El trabajo analiza las tesis de Redondo acerca de la distinción entre ontología y epistemología y la posibilidad de conocimiento objetivo: la idea central defendida es que la inter-subjetividad, y no la objetividad, debería ser el criterio apropiado para el positivismo jurídico normativista. Luego se examina el rol de la normatividad en el positivismo jurídico normativista, enfocándose en la naturaleza metafísica de la tesis de que el derecho pertenece a los campos de la normatividad y la razón práctica. Las secciones siguientes examinan las concepciones reduccionistas y anti-reduccionistas sobre las “entidades” jurídicas y la teoría de las fuentes del derecho. La sección final aborda la cuestión de la neutralidad valorativa de la teoría jurídica y analiza la posibilidad de describir el punto de vista interno de los participantes sin asumir compromiso alguno con la práctica jurídica existente. (shrink)

This essay examines two dominant traditions in legal philosophy, the natural law theory and legal positivism, in terms of how they account for the normativity of law. I argue that, although these two traditions generally take the question of the normativity of law seriously and try to account for it, they are not successful in doing so. This failure in the prevailing literature on the philosophy of law, I suggest, nevertheless has an implicit reconstructive impact: the insights into the (...) failure of natural law theory and legal positivism imply an alternative philosophical framework that may provide a positive answer to the question of the normativity of law. (shrink)

This article analyses the work of Martin Loughlin on the nature of public law, and in particular, his ostensibly strident anti-positivism. It is argued that despite this, Loughlin's work can be reconciled with a normative account of legal positivism, based on the work of Jeremy Waldron. The article maintains that Loughlin's account of public law as political jurisprudence is methodologically compatible with, and potentially even substantively complementary to, normative legal positivism. It is ultimately suggested that (...) this reconciliation provides a methodology for public law scholarship which is both positivist and political, and which may offer insight into the subject beyond that which either approach might generate alone. (shrink)

Judging Positivism is a critical exploration of the method and substance of legal positivism. Margaret Martin is primarily concerned with the manner in which theorists who adopt the dominant positivist paradigm ask a limited set of questions and offer an equally limited set of answers, artificially circumscribing the field of legal philosophy in the process. The book focuses primarily but not exclusively on the writings of prominent legal positivist, Joseph Raz. Martin argues that Raz's theory has changed over (...) time and that these changes have led to deep inconsistencies and incoherencies in his account. One re-occurring theme in the book is that Razian positivism collapses from within. In the process of defending his own position, Raz is led to support the views of many of his main rivals, namely, Ronald Dworkin, the legal realists and the normative positivists. The internal collapse of Razian positivism proves to be instructive. Promising paths of inquiry come into view and questions that have been suppressed or marginalised by positivists re-emerge ready for curious minds to reflect on anew. The broader vision of jurisprudential inquiry defended in this book re-connects philosophy with the work of practitioners and the worries of law's subjects, bringing into focus the relevance of legal philosophy for lawyers and laymen alike"--Provided by publisher. (shrink)

Volume 10, Issue 1, March 2019, Page 77-84.

This paper presents positivistic, normative/theological, and strategic analyses of the application of religion to the practice of strategic leadership in business. It is argued that elements of religion can enrich several components of strategic leadership. Furthermore, it is argued that the question of whether religion ought to be applied involves the more basic question of whether there is a common basis or a meta-framework relating theological and normative analyses. Finally, because the strategic value of religion in strategic leadership (...) involves varying costs and benefits, an optimal level of integration can be established by applying a cost/benefit analysis to a framework of four ways of relating religion to the business arena based on the degree of integration. (shrink)

Neoclassical economic theory in its pretensions to scientific status is founded on one of the variants of a now discredited positivism. Neoclassical economic theory claims that there are two distinct areas of economic research: positive economics and normative economics. The former is assumed to deal with the cognitive as scientific content of economics while the later focuses on welfare or equity issues. I argue that the reliance of the whole theoretical structure of economics on the normative postulate (...) of rationality renders neoclassical economics a normative discipline. I also argue that neoclassical economics should thus be viewed as an instance of applied ethics rather than as applied mathematics, say. Finally, it is suggested that neoclassical economics, if its scientific pretensions are to be taken seriously, should be absorbed theoretically into general anthropology. (shrink)

This article supports H. L. A. Hart's “any reasons” thesis (defended consistently from the first edition of The Concept of Law in 1961 to the Postscript to the second edition of 1994) that legal officials may accept law for any reasons, including non‐moral reasons. I develop a conception of non‐moral aesthetic ideals of official conduct which may provide legal officials with reasons to accept and apply even morally iniquitous law. I use this conception in order to rebut Gerald Postema's and (...) Joseph Raz's criticisms of Hart's view, and suggest that my revisions offer reasons for renewed confidence in Hart's account of law's normativity. (shrink)

The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) uses the conceptualization of psychopathology to make psychiatric diagnoses operational. The use of explicit operational criteria appears to be based on an implicit neo-positivist epistemology. Operationalism involves an excessive focus on quantitative descriptions of behavior manifestations, contesting that psychopathology is understood as a deviation from the normal or the average in a given population. Consequently, the normal and the psychopathological become homogeneous. Our analysis investigates if this neo-positivist epistemology narrows (...) psychopathology conceptualization and endanger integration with the hybrid biopsychosocial model of psychiatry. Based on Georges Canguilhem’s theorization of a qualitative approach to the individual organism who is in a state of morbidity, we show that the (psychiatric) pathology also contains differences in quality. Moreover, that humans are norm-producing organisms that actively respond to changes in their internal and external environment. In this regard, the operationalization of mental disorders could include the normativity in humans, i.e., the ability to produce norms. We argue this will mitigate the one-sided psychopathology conceptualization and strengthen the relationship between psychiatric nosology and psychiatry’s hybrid biopsychosocial model. (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)

It has become increasingly popular to argue that legal positivism is actually a normative theory, and that it cannot be purely descriptive and morally neutral as H.L.A. Hart has suggested. This article purports to disprove this line of thought. It argues that legal positivism is best understood as a descriptive, morally neutral, theory about the nature of law. The article distinguishes between five possible views about the relations between normative claims and legal positivism, arguing that (...) some of them are not at odds with Hart’s thesis about the nature of jurisprudence, while the others are wrong, both as expositions of legal positivism or as critiques of it. Legal positivism does not necessarily purport to justify any aspect of its subject matter, nor is it committed to any particular moral or political evaluations. (shrink)

This chapter contains section titled: History and Context Clarifications Alternative Legal Positivisms The Rule of Recognition and the Basic Norm The Divisions Within Contemporary Legal Positivism Debates and Distinctive Views Critiques of Legal Positivism Two Critics: Ronald Dworkin and John Finnis Methodological Questions and the Way Forward Conclusion Note References Further Reading.

A theme of growing importance in both the law and philosophy and socio-legal literature is how regulatory dynamics can be identified and normative expectations met in an age when transnational actors operate on a global plane and in increasingly fragmented and transformative contexts. A reconsideration of established theories and axiomatic findings on regulatory phenomena is an essential part of this discourse. There is indeed an urgent need for discontinuity regarding what we know about, among other things, law, legality, sovereignty (...) and political legitimacy, power relations, institutional design and development, and pluralist dynamics of ordering under processes of globalisation and transnationalism. Making an important contribution to the scholarly debate on the subject, this volume features original and much-needed essays of theoretical and applied legal philosophy as well as socio-legal accounts that reflect on whether legal positivism has anything to offer to this intellectual enterprise. This is done by discussing whether global and transnational cultural, socio-political, economic, and juridical challenges as well as processes of diversification, fragmentation, and transformation reinforce or weaken legal positivists’ assumptions, claims, and methods. The themes covered include, but are not limited to, absolute and limited state sovereignty; the ‘new international legal positivism’; Hartian legal positivism and the ‘normative positivist’ account; the relationship between modern secularisation, social conventionalism, and meta-ontological issues of temporality in postnational jurisprudence; the social positivisation of human rights; the formation and content of jus cogens norms; feminist critique; the global and transnational migration of principles of justice and morality; the Vienna Convention on the Law of Treaties rule of interpretation; and the responsibility of transnational corporations. (shrink)

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)

This paper centers upon the issue, within the project of analytic jurisprudence, of how to construe the status of the legal activities of a state when there is a disjuncture between a nation's formal legal commitments, such as those stated within a bill or charter of rights, and the way in which its officials actually engage in the practice of law, i.e., legislation and adjudication. Although there are two positions within contemporary legal theory which focus directly on this issue (Inclusive (...) and Exclusive Legal Positivism), neither is able to offer an acceptable descriptive-explanatory account of the variety of legal activities at play within such situations. Thus, tensions between legal formality and practice, existent in many legal systems today, can be used to delineate a theoretical gap in regard to our understanding of law. This paper serves to acknowledge that point, and suggests a possible constructive solution to the positivists' descriptive-explanatory problem. Furthermore, in taking seriously the gap between the normative orientation of a legal system and its de facto practice, this paper also suggests other areas within analytic jurisprudence that might be meaningfully informed by that issue. (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)

In his essay, “Negative and Positive Positivism,” Jules L. Coleman extends in two important ways the Legal Positivism of H. L. A. Hart. First, he shows that the “separability thesis”—the claim that no necessary or constitutive relationship exists between law and morality—to which Positivists are wedded does not entail the view, attributed by Ronald Dworkin to Legal Positivists, that law consists in “hard facts.” Instead, the separability thesis requires only the possibility of deciding the truth of propositions of (...) law. This weaker requirement can be met by rules of recognition that are semantically adequate but that fail to set out tests by means of which the legal status of rules and norms may be verified. Second, Coleman argues that one can subscribe to the separability thesis and still maintain that judges may have a legal duty to couch decisions in moral terms whenever the “content or proper formulation of [a] rule of recognition” is in dispute. Such a legal duty may exist in virtue of a convergent practice “among judges of resolving the controversy in a particular way”. (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)

This chapter develops an account of the meaning and use of various types of legal claims, and uses this account to inform debates about the nature and normativity of law. The account draws on a general framework for implementing a contextualist theory, called 'Discourse Contextualism' (Silk 2016). The aim of Discourse Contextualism is to derive the apparent normativity of claims of law from a particular contextualist interpretation of a standard semantics for modals, along with general principles of interpretation and conversation. (...) Though the semantics is descriptivist, it avoids Dworkin’s influential criticism of so-called “semantic theories of law,” and elucidates the nature of “theoretical disagreements” about the criteria of legal validity. The account sheds light on the social, interpersonal function of normative uses of language in legal discourse. It also gives precise expression to Hart’s and Raz’s intuitive distinctions among types of legal claims (internal/external, committed/detached), while giving them a uniform type of analysis. The proposed semantics and pragmatics of legal claims provides a fruitful framework for further theorizing about the nature and metaphysics of law, the relation between law and morality, and the apparent practical character of legal language and judgment. Discourse Contextualism provides a solid linguistic basis for a broader account of legal discourse and practice. (shrink)

Many contemporary legal positivists have argued that legal theory is evaluative because it requires the theorist to make judgments of importance. At the same time they argue that it is possible to know without resort to evaluative considerations. I distinguish between two senses of : in one sense it refers to legal validity, in another to the content of legal norms, and I argue that legal positivism is best understood (as indeed some legal positivists have explicitly said) as a (...) claim about legal content. Understood this way, however, it is open to the objection that knowing the content of legal norms requires evaluative considerations for reasons similar to those offered by positivists for thinking that legal theory is requires evaluative considerations. I then distinguish between evaluative considerations in general and moral considerations and argue that because of the subject-matter of legal norms, there are good reasons for thinking that it is moral considerations, and not just any other evaluative considerations, that are required for knowing the content of legal norms. (shrink)

The aim of the paper is that of discussing some recent antipositivist theses, with specific reference to the arguments that focus on the alleged incapability of legal positivism to understand and explain the complex normative structure of constitutional states. One of the central tenets of legal positivism (in its guise of ``methodological'' or ``conceptual'' positivism) is the theory of the separation between law and morality. On the assumption that in contemporary legal systems, constitutional law represents a (...) point of intersection between law and basic moral values, antipositivists contrast legal positivism with two main arguments. First, on a more general level, the positivist theory of the separation between law and morality is questioned; then, and consequently, the ``neutrality thesis'' in the juristic study of law is rejected. The author discusses both these antipositivist arguments, and offers a brief defence of methodological positivism. (shrink)

Is the nature of law to be formal procedure or to embody substantive value? This work deals with the traditional conflict in legal philosophy between positivistic and anti-positivistic theories of law. It examines the conflict with respect to seven central issues in legal philosophy--law as a reason for action, law and authority, the internal point of view to law, the acceptance of law, discretion and principle, interpretation and semantics, and law and the common good. This work argues that although this (...) conflict cannot be resolved, the true nature of law is revealed--not obscured--by this perennial situation. (shrink)

According to a recent wave of work by legal anti-positivists, legal norms are a subset of moral norms. This striking “one-system” view of law has rapidly become the dominant form of anti-positivism, but its implications have so far been little tested. This article argues that the one-system view leads systematically to untenable conclusions about what legal rights and obligations we have. For many clear legal norms, the view lacks the resources to explain the existence of corresponding moral norms. And (...) its criteria for distinguishing legal norms within morality imply an under- or over-inclusive set of legal norms. I stress the special difficulties that apply beyond obligations, in the case of privileges and powers, and I show that the view's problems do not only—or mainly—concern egregiously unjust law, or indeed morally defective law at all. I close with reflections on legal normativity and the prospects for different forms of anti-positivism. (shrink)

David Lewis presented Convention as an alternative to the conventionalism characteristic of early-twentieth-century analytic philosophy. Rudolf Carnap is well known for suggesting the arbitrariness of any particular linguistic convention for engaging in scientific inquiry. Analytic truths are self-consistent, and are not checked against empirical facts to ascertain their veracity. In keeping with the logical positivists before him, Lewis concludes that linguistic communication is conventional. However, despite his firm allegiance to conventions underlying not just languages but also social customs, he pioneered (...) the view that convening need not require any active agreement to participate. Lewis proposed that conventions arise from “an exchange of manifestations of a propensity to conform to a regularity” (87–8). In reasserting the conventional quality of languages and other practices resting on mutual expectations, Lewis comfortably works within the analytic tradition. Yet he also deviates from his predecessors because his conventionalist approach is comprehensively grounded in instrumentalism. Lewis adopts an extension of David Hume's desire-belief psychology articulated in rational choice theory. He develops his philosophy of convention relying on the highly formal mid-twentieth-century expected utility and game theories. This attempt to account for language and social customs wholly in terms of instrumental rationality has the implication of reducing normativity to preference satisfaction. Lewis’ approach continues in the trend of undermining normative political philosophy because institutions and practices arise spontaneously, without the deliberate involvement of agents. Perhaps Lewis’ Convention is best seen as a resurgent form of analytic philosophy, characterized by “a style of argument, hostility to [ambitious] metaphysics, focus on language, and the dominance of logic and formalization” that solves the dilemma of “combining the analytic inheritance…with normative concerns” by reducing normativity to individuals’ preference fulfillment consistent with the axioms of rational choice. (shrink)

To understand H.L.A. Hart's general theory of law, it is helpful to distinguish betweensubstantiveandmethodologicallegal positivism. Substantive legal positivism is the view that there is no necessary connection between morality and the content of law. Methodological legal positivism is the view that legal theory can and should offer a normatively neutral description of a particular social phenomenon, namely law. Methodological positivism holds, we might say, not that there is no necessary connection between morality and law, but rather (...) that there is no connection, necessary or otherwise, between morality and legal theory. The respective claims of substantive and methodological positivism are, at least on the surface, logically independent. Hobbes and Bentham employed normative methodologies to defend versions of substantive positivism, and in modern times Michael Moore has developed what can be regarded as a variant of methodological positivism to defend a theory of natural law. (shrink)

This chapter contains sections titled: References and Further Reading.

In this paper I argue that Kant’s political and juridical philosophy justifies a type of normative legal positivism that implies specific notions of law and legal freedom which determine and restrict the sphere of action of judges and jurists. Finally, I defend that, according to Kant’s practical philosophy, the normative connection between justice and law is not supposed to be carried out at the juridical level, as a meta-juridical theory, but at the political one, making it a (...) meta-political theory. (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)

This interdisciplinary paper identifies principles of an affluent country (im)migration policy that avoids: (1) the positivist inclusion/exclusion mechanism of liberalism and communitarianism; and (2) the idealism of most cosmopolitan (im)migration theories. First, I: (a) critique the failure of liberalism and communitarianism to consider (im)migration under distributive justice; and (b) present cosmopolitan (im)migration approaches as a promising alternative. This paper’s central claim is that cosmopolitan (im)migration theory can determine normative shortcomings in (im)migration policy by coupling elements of Frankfurt School methodology (...) to case studies of (im)migration regimes. Lastly, I apply this analytical procedure to recent special changes in Spanish and UK immigration law. (shrink)

In this essay, I characterize the original intervention that became Inclusive Legal Positivism, defend it against a range of powerful objections, explain its contribution to jurisprudence, and display its limitations and its modest jurisprudential significance. I also show how in its original formulations ILP depends on three notions that are either mistaken or inessential to law: the separability thesis, the rule of recognition, and the idea of criteria of legality. The first is false and is in event inessential to (...) legal positivism. The second is inessential to legal positivism. The third is likely inessential to law. I then characterize the central claim of ILP in a way that relies on none of these: ILP is the claim that necessarily social facts determine the determinants of legal content. I show that ILP so conceived leaves the central debates in law largely untouched. I suggest how the most fundamental of these—the question of the normativity of law—at least can be usefully addressed. The essay closes by suggesting that even though one can distinguish the social from the normative dimensions of law, a theory of the nature of law is necessarily an account of the relationship between the two: It is a theory either of the difference that certain distinctive social facts make in normative space, or it is an account of the distinctive normative difference that law makes, and the social and other facts that are necessary to explain that difference. One can distinguish between but one cannot separate the social from the normative aspects of legality. (shrink)

In this essay, I characterize the original intervention that became Inclusive Legal Positivism, defend it against a range of powerful objections, explain its contribution to jurisprudence, and display its limitations and its modest jurisprudential significance. I also show how in its original formulations ILP depends on three notions that are either mistaken or inessential to law: the separability thesis, the rule of recognition, and the idea of criteria of legality. The first is false and is in event inessential to (...) legal positivism. The second is inessential to legal positivism. The third is likely inessential to law. I then characterize the central claim of ILP in a way that relies on none of these: ILP is the claim that necessarily social facts determine the determinants of legal content. I show that ILP so conceived leaves the central debates in law largely untouched. I suggest how the most fundamental of these—the question of the normativity of law—at least can be usefully addressed. The essay closes by suggesting that even though one can distinguish the social from the normative dimensions of law, a theory of the nature of law is necessarily an account of the relationship between the two: It is a theory either of the difference that certain distinctive social facts make in normative space, or it is an account of the distinctive normative difference that law makes, and the social and other facts that are necessary to explain that difference. One can distinguish between but one cannot separate the social from the normative aspects of legality. (shrink)

The aim of the paper is that of discussing some recent antipositivist theses, with specific reference to the arguments that focus on the alleged incapability of legal positivism to understand and explain the complex normative structure of constitutional states. One of the central tenets of legal positivism (in its guise of “methodological” or “conceptual” positivism) is the theory of the separation between law and morality. On the assumption that in contemporary legal systems, constitutional law represents a (...) point of intersection between law and basic moral values, antipositivists contrast legal positivism with two main arguments. First, on a more general level, the positivist theory of the separation between law and morality is questioned; then, and consequently, the “neutrality thesis” in the juristic study of law is rejected. The author discusses both these antipositivist arguments, and offers a brief defence of methodological positivism. (shrink)