Results for 'legal positivism'

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  1. Inclusive Legal Positivism.Wilfrid J. Waluchow - 1994 - Oxford University Press.
    This book develops a general philosophical theory about the nature of law and its relationship with morality called inclusive legal positivism. In addition to articulating and defending his own version of legal positivism, which is a refinement and development of the views of H.L.A. Hart as expressed in his classic book The Concept of Law, the author clarifies the terms of current jurisprudential debates about the nature of law. These debates are often clouded by failures to (...)
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  2. Legal Positivism and the Moral Origins of Legal Systems.Emad Atiq - forthcoming - Canadian Journal of Law and Jurisprudence.
    Legal positivists maintain that the legality of a rule is fundamentally determined by social facts. Yet for much of legal history, ordinary officials used legal terminology in ways that seem inconsistent with positivism. Judges regularly cited, analyzed, and predicated their decisions on the ‘laws of justice’ which they claimed had universal legal import. This practice, though well-documented by historians, has received surprisingly little philosophical attention; I argue that it invites explanation from positivists. After taxonomizing the (...)
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  3.  27
    Inclusive Legal Positivism.William H. Wilcox & W. J. Waluchow - 1997 - Philosophical Review 106 (1):133.
    Like many recent works in legal theory, especially those focusing on the apparently conflicting schools of legal positivism and natural law, Waluchow’s Inclusive Legal Positivism begins by admitting a degree of perplexity about the field; indeed, he suggests that the field has fallen into “chaos”. Disturbingly, those working within legal theory appear most uncertain about what the tasks of their field are. Legal philosophers often seem to suspect strongly that at least their colleagues (...)
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  4. Legal Positivism: 5½ Myths.John Gardner - 2001 - American Journal of Jurisprudence 46 (1):199-227.
  5.  86
    Legal Positivism: Still Descriptive and Morally Neutral.Andrei Marmor - 2006 - Oxford Journal of Legal Studies 26 (4):683-704.
    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 (...)
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  6. Prescriptive Legal Positivism: Law, Rights and Democracy.Tom Campbell (ed.) - 2004 - Cavendish Publishing.
    Tom Campbell is well known for his distinctive contributions to legal and political philosophy over three decades. In emphasising the moral and political importance of taking a positivist approach to law and rights, he has challenged current academic orthodoxies and made a powerful case for regaining and retaining democratic control over the content and development of human rights. This collection of his essays reaches back to his pioneering work on socialist rights in the 1980s and forward from his seminal (...)
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  7. LEGAL POSITIVISM: 5 1/2 MYTHS.John Gardner - 2001 - American Journal of Jurisprudence 46 (1):199-227.
  8.  23
    Legal Positivism, Conventionalism, and the Normativity of Law.Torben Spaak - 2018 - Jurisprudence 9 (2):319-344.
    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 (...)
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  9. Legal Positivism and the Moral Aim Thesis.David Plunkett - 2013 - Oxford Journal of Legal Studies 33 (3):563-605.
    According to Scott Shapiro’s Moral Aim Thesis, it is an essential feature of the law that it has a moral aim. In short, for Shapiro, this means that the law has the constitutive aim of providing morally good solutions to morally significant social problems in cases where other, less formal ways of guiding the activity of agents won’t work. In this article, I argue that legal positivists should reject the Moral Aim Thesis. In short, I argue that although there (...)
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  10.  54
    Legal Positivism in American Jurisprudence.Anthony J. Sebok - 1998 - Cambridge University Press.
    This book represents a serious and philosophically sophisticated guide to modern American legal theory, demonstrating that legal positivism has been a misunderstood and underappreciated perspective through most of twentieth-century American legal thought. Anthony Sebok traces the roots of positivism through the first half of the twentieth century, and rejects the view that one must adopt some version of natural law theory in order to recognize moral principles in the law. On the contrary, once one corrects (...)
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  11. Grounding-based formulations of legal positivism.Samuele Chilovi - 2020 - Philosophical Studies 177 (11):3283-3302.
    The goal of this paper is to provide an accurate grounding-based formulation of positivism in the philosophy of law. I start off by discussing some simple formulations, based on the ideas that social facts are always either full or partial grounds of legal facts. I then raise a number of objections against these definitions: the full grounding proposal rules out possibilities that are compatible with positivism; the partial grounding proposal fails, on its own, to vindicate the distinctive (...)
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  12. In Defense of Legal Positivism: Law Without Trimmings.Matthew H. Kramer - 1999 - Oxford University Press.
    This book is an uncompromising defense of legal positivism that insists on the separability of law and morality. After distinguishing among three facets of morality, Kramer explores a variety of ways in which law has been perceived as integrally connected to each of those facets. The book concludes with a detailed discussion of the obligation to obey the law--a discussion that highlights the strengths of legal positivism in the domain of political philosophy as much as in (...)
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  13.  2
    Robust Normativity, Morality, and Legal Positivism.David Plunkett - 2019 - In David Plunkett, Scott Shapiro & Kevin Toh (eds.), Dimensions of Normativity: New Essays on Metaethics and Jurisprudence. Oxford: Oxford University Press. pp. 105-136.
    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 (...)
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  14.  70
    Legal Positivism, Law's Normativity, and the Normative Force of Legal Justification.Torben Spaak - 2003 - Ratio Juris 16 (4):469-485.
    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 (...)
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  15. Exclusive Legal Positivism.Andrei Marmor - 2002 - In Jules Coleman & Scott J. Shapiro (eds.), The Oxford Handbook of Jurisprudence & Philosophy of Law. Oxford University Press.
     
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  16. Legal Positivism.Jules L. Coleman & Brian Leiter - 1996 - In Dennis M. Patterson (ed.), A Companion to Philosophy of Law and Legal Theory. Blackwell.
     
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  17. Legal Positivism and 'Explaining' Normativity and Authority.Brian Bix - 2006 - American Philosophical Association Newsletter 5 (2 (Spring 2006)):5-9.
    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 (...)
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  18. Legal Positivism and Legal Disagreements.José Juan Moreso - 2009 - Ratio Juris 22 (1):62-73.
    This paper deals with the possibility of faultless disagreement in law. It does this by looking to other spheres in which faultless disagreement appears to be possible, mainly in matters of taste and ethics. Three possible accounts are explored: the realist account, the relativist account, and the expressivist account. The paper tries to show that in the case of legal disagreements, there is a place for an approach that can take into account our intuitions in the sense that (...) disagreements are genuine and at times faultless. (shrink)
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  19. Legal Positivism.Mario Jori (ed.) - 1992 - New York University Press.
    The aim of this collection of essays on legal positivism is to complete the already easily available English material on this subject. This is not a collection of writings by legal positivists, but about legal positivism.
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  20. Exclusive Legal Positivism.Andrei Marmor - 2002 - In Jules Coleman & Scott J. Shapiro (eds.), The Oxford Handbook of Jurisprudence and Philosophy of Law. Oxford University Press.
     
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  21.  94
    Legal Positivism and the Separation of Existence and Validity.Matthew Grellette - 2010 - Ratio Juris 23 (1):22-40.
    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 (...)
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  22.  78
    Legal Positivism and Natural Law Reconsidered.David O. Brink - 1985 - The Monist 68 (3):364-387.
    Legal positivism and natural law theory have traditionally been construed as mutually exclusive theories about the relationship between morality and the law. Although I endorse a good deal of this traditional wisdom, I shall argue that we can and should construe LP and NL as complementary theories. So construed, they not only are compatible but also state important truths.
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  23.  44
    Legal Positivism and the African Legal Tradition: A Reply.Olufemi Taiwo - 1985 - International Philosophical Quarterly 25 (2):197-200.
  24. Legal Positivism and the African Legal Tradition.F. U. Okafor - 1984 - International Philosophical Quarterly 24 (2):157-164.
  25. The Argument From Injustice: A Reply to Legal Positivism.Robert Alexy - 2002 - Oxford University Press UK.
    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 (...)
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  26. Inclusive Legal Positivism.Kenneth Eimar Himma - 2002 - In Jules Coleman & Scott J. Shapiro (eds.), The Oxford Handbook of Jurisprudence & Philosophy of Law. Oxford University Press.
     
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  27.  3
    Legal Positivism and the Real Definition of Law.David Plunkett & Daniel Wodak - forthcoming - Jurisprudence:1-32.
    We explore an underappreciated tension at the heart of the debate over legal positivism. On the one hand, many legal philosophers aspire for the debate to tell us what law is, and the nature of law...
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  28.  97
    Inclusive Legal Positivism, Legal Interpretation, and Value-Judgments.Vittorio Villa - 2009 - Ratio Juris 22 (1):110-127.
    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. (...)
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  29.  47
    Legal Positivism: Emotivistic or Naturalistic?Xiaobo Zhai - 2011 - Philosophy and Public Issues - Filosofia E Questioni Pubbliche 1 (1):31-39.
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  30. Legal Positivism and Scottish Common Sense Philosophy.Thomas Roberts - 2005 - Canadian Journal of Law and Jurisprudence 18 (2).
    This paper identifies a volitional theory of meaning common to speech act theory and legal positivism, represented by Hart and Kelsen. This model is compared and contrasted with the model of social operations developed by Reid, a Common Sense Enlightenment philosopher. Whereas the former subscribes to the view that meaning is generated by acts of will, the latter finds meaning to consist of the dual elements of sign and 'directedness'.The ability of positivist theories to provide a structural account (...)
     
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  31.  2
    Legal Positivism in a Global and Transnational Age.Luca Siliquini-Cinelli (ed.) - 2019 - Springer Verlag.
    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 (...)
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  32.  9
    Legal Positivism.John Gardner - 2009 - In Aileen Kavanagh & John Oberdiek (eds.), Arguing About Law. Routledge. pp. 153.
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  33. Legal Positivism.Kenneth Einar Himma - 2001 - Internet Encyclopedia of Philosophy.
     
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  34.  26
    Is Legal Positivism as Worthless as Many Italian Scholars of Public Law Depict It?Stefano Civitarese Matteucci - 2010 - Ratio Juris 23 (4):505-539.
    An increasing number of Italian scholars are beginning to share the idea that the conceptual basis of legal positivism (LP) is wrong, particularly in the field of Public Law. According to a group of theories called “neoconstitutionalism,” constitutionalism is to be understood not only as a principle based on the need to impose legal limits to political power, but also as an aggregation of values capable of continually remodelling legal relationships, positioning itself as a “pervasive” point (...)
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  35.  39
    Socio-Legal Positivism and a General Jurisprudence.Brian Z. Tamanaha - 2001 - Oxford Journal of Legal Studies 21 (1):1-32.
    H.L.A. Hart described his classic book, The Concept of Law, as a work in «descriptive sociology», and his aspiration was to produce a general jurisprudence. He was less than successful in achieving both of these aims. This article attempts a comprehensive reconstruction of legal positivism in a manner that will render it more compatible with a sociological approach, and more amenable to the project of general jurisprudence. The label «socio-legal positivism» reflects the fact that this article (...)
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  36. Legal Positivism.Herbert La Hart - 1967 - In Paul Edwards (ed.), The Encyclopedia of Philosophy. New York: Macmillan. pp. 4.
     
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  37. Institutional Legal Positivism?Z. Bankowski - 1989 - Rechtstheorie 20 (3):289-302.
     
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  38. Was Inclusive Legal Positivism Founded on a Mistake?Scott J. Shapiro - 2009 - Ratio Juris 22 (3):326-338.
    In this paper, I present a new argument against inclusive legal positivism. As I show, any theory which permits morality to be a condition on legality cannot account for a core feature of legal activity, namely, that it is an activity of social planning. If the aim of a legal institution is to guide the conduct of the community through plans, it would be self-defeating if the existence of these plans could only be determined through deliberation (...)
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  39. Legal Positivism.Samuel I. Shuman - 1963 - Detroit: Wayne State University Press.
     
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  40.  74
    Legal Positivism.Brian H. Bix - 2005 - In Martin P. Golding & William A. Edmundson (eds.), The Blackwell Guide to the Philosophy of Law and Legal Theory. Blackwell.
  41.  84
    The Place of Legal Positivism in Contemporary Constitutional States.Giorgio Pino - 1999 - Law and Philosophy 18 (5):513-536.
    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 (...)
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  42.  7
    The Invisible Origins of Legal Positivism: A Re-Reading of a Tradition.William Conklin - 2001 - Springer Netherlands.
    Conklin's thesis is that the tradition of modern legal positivism, beginning with Thomas Hobbes, postulated different senses of the invisible as the authorising origin of humanly posited laws. Conklin re-reads the tradition by privileging how the canons share a particular understanding of legal language as written. Leading philosophers who have espoused the tenets of the tradition have assumed that legal language is written and that the authorising origin of humanly posited rules/norms is inaccessible to the written (...)
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  43. Classical Legal Positivism at Nuremberg.Stanley L. Paulson - 1975 - Philosophy and Public Affairs 4 (2):132-158.
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  44.  5
    Kant on Legal Positivism and the Juridical State.Joel T. Klein - 2021 - Kant Yearbook 13 (1):73-105.
    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 (...)
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  45. Legal Positivism, Social Rules, Andriggs V.Palmer.Rodger Beehler - 1990 - Law and Philosophy 9 (3):285 - 293.
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    Natural Law Theory, Legal Positivism, and the Normativity of Law.Mehmet Ruhi Demiray - 2015 - The European Legacy 20 (8):807-826.
    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 (...)
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  47.  80
    Inclusive Legal Positivism W. J. Waluchow Oxford: Clarendon Press, 1994, X + 290 Pp., References, Table of Cases, Index, $75.50. [REVIEW]Brenda M. Baker - 1997 - Dialogue 36 (4):868-.
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  48. Legal Realism and Legal Positivism Reconsidered.Brian Leiter - 2001 - Ethics 111 (2):278-301.
  49. Islamic Law and Legal Positivism.Raja Bahlul - 2016 - Rivista di Filosofia Del Diritto [V, 2/2016, Pp. 245-266] 2 (V):245-266.
    The object of this paper is to elaborate an understanding of Islamic law and legal theory in terms of the conceptual framework provided by Legal Positivism. The study is not based on denying or contesting the claim of Islamic law to being of divine origin; rather, it is based on the historical reality of Islamic law as part of a (once) living legal tradition, with structure, method, and theory, regardless of claims of origin. It will be (...)
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  50.  32
    Legal Positivism and Deontic Detachment.Robert Mullins - 2018 - Ratio Juris 31 (1):4-8.
    I consider a puzzle that arises when the logical principle known as “deontic detachment” is applied to the law. It is not possible to accept the principle of deontic detachment in a legal setting while also accepting that the so-called “social facts thesis” applies to all legal propositions. According to the social facts thesis, the existence and content of law is determined by the attitudes or practices of legal officials. Abandoning deontic detachment is not an appropriate solution (...)
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