Robust Normativity, Morality, and Legal Positivism
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Abstract 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.Keywords:
Positivism
Legal positivism
Legal formalism
The most influential legal philosophies—notably legal positivism—tend to draw a sharp epistemological distinction between the concept of time and the concept of law. The author provides a legal pluralist account of law, understanding it to consist in a shared idea of justice and the shared normative experience of participants in a legal discourse. A common assumption by participants of their ability to grasp and control time—what the author terms “chronos”—forms one aspect of their shared experience of the legal. A normative understanding of time is thus fundamental to a normative understanding of law.
Legal positivism
Legal formalism
Positivism
Empirical legal studies
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Joseph Raz is an important figure in upper legal positivism.While studying law,Raz try to substitute new methods for some old methods used by early analytical jurist,and reconstruct legal positivism with new philosophical theory,besides continuing keeping the tradition of positivism and using analysis method that legal positivist used to employ.The legal philosophy of Raz has exhibited a new important tendency:making legal positivism tend to practical philosophy.This tendency run through all directions in Raz's legal philosophy,and became the crux of understanding his legal philosophy.
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In modern theories of law,normativity refers to the influence of law on human act,as well as the expression of a world that differs from the fact.The controversy of legal normativity can be resolved into three interrelated theoretical problems: Does sanction have the same normative function as duty? Whether only general legal rules have normativity? Whether or not the legal and philosophical positivists share the same view on normativity? Based on analysis of the above-mentioned problems,it can be concluded that since norms differ from value,legal positivists can hold the stance ofvalue-freein discussion of norms;legal normativity cannot be reduced to only one normative function,which nevertheless needs more precise studies.
Legal positivism
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Soundness
Legal positivism
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Legal formalism
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Legal positivism these days is considered a descriptive position, but it has not always been so, and is not always so now. Even apart from Ronald Dworkin, Stephen Perry, and others who have sought to locate the normative commitments in allegedly descriptive legal positivism, two explicitly normative versions of legal positivism constitute part of the positivist picture. One dating from Jeremy Bentham but still discussed and promoted, seeks to prescribe what judges and other legal decision-makers ought to do, and, more specifically, maintains that judges ought to restrict their sources of decision-making guidance to rule-of-recognition recognized positive law. And the other, based on one (and probably the better) understanding of H.LA. Hart’s 1958 position in his debate with Lon Fuller, and repeated in the 1961 version of The Concept of Law (although arguably changed in the 1994 “Postscript”), argues that legal cultures ought, for moral and political reasons, adopt a positivist understanding of the nature of law. Both of these versions of legal positivism are explicitly normative, and both are part of the full picture of the past and present of legal positivism.
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Much in recent discussions on legal positivism suggests that the controversy surrounding the notion turns on the distinction between inclusive and exclusive legal positivism.1 As a point of departure in distinguishing them, the separation principle is helpful.2 At the most general level, the separation principle – as Kenneth Einar Himma neatly puts it – denies ‘that there is necessary overlap’ between the law and morality.3 The separation principle counts, then, as the contradictory of the morality principle, according to which there is ‘necessary overlap’ between the law and morality, however this might be explicated.4 What the legal positivist’s
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In contemporary American jurisprudence, there are many different legal-theoretical courses, orientations and legal schools. In this work, the author tries to analyze jusnaturalism and legal positivism. The reason for commitment for these two legal theories the author finds in the fact that they are actually modern forms of theories with a rich philosophical tradition. The paper argues that the jusnaturalism is the oldest philosophical tradition. Legal positivism was developed in opposition to jusnaturalism in the mid-19th century. The author points out that contemporary American jurisprudence marks the conflict between jusnaturalism and legal positivism. The main reason for their disagreement is the question of the relationship between law and morality. The paper analyzes the differences between the modern version of legal positivism and jusnaturalism and their classical theories. It is noticeable that the modern versions are purified and softened versions of the classic theories. The author concludes that a kind of mitigation of positivist-jusnaturalism dispute has already begun. Finally, the author allows that in the further development of contemporary American jurisprudence a significant convergence of legal positivism and jusnaturalism can reasonably be expected.
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In contemporary American jurisprudence, there are many different
legal-theoretical courses, orientations and legal schools. In this work, the
author tries to analyze jusnaturalism and legal positivism. The reason for
commitment for these two legal theories the author finds in the fact that
they are actually modern forms of theories with a rich philosophical
tradition. The paper argues that the jusnaturalism is the oldest
philosophical tradition. Legal positivism was developed in opposition to
jusnaturalism in the mid-19th century. The author points out that
contemporary American jurisprudence marks the conflict between jusnaturalism
and legal positivism. The main reason for their disagreement is the question
of the relationship between law and morality. The paper analyzes the
differences between the modern version of legal positivism and jusnaturalism
and their classical theories. It is noticeable that the modern versions are
purified and softened versions of the classic theories. The author concludes
that a kind of mitigation of positivist-jusnaturalism dispute has already
begun. Finally, the author allows that in the further development of
contemporary American jurisprudence a significant convergence of legal
positivism and jusnaturalism can reasonably be expected.
Legal positivism
Positivism
Legal formalism
Opposition (politics)
Empirical legal studies
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Citations (0)
The argument of theoretical disagreement has been deemed the most serious contemporary challenge to the traditional views of law, not merely for academic legal positivists but for all lawyers and scholars. Although coined by Ronald Dworkin for the specific purpose of opposing conventionalist and positivist theories of law, the argument recognises the general truth that jurisprudence is an inevitably agonistic enterprise. Nowadays, it is one of the most discussed arguments in general jurisprudence. In this paper, I follow Shapiro’s idea that legal positivists have to accept the challenge and accommodate the argument – they simply cannot dismiss it as conceptually irrelevant. I briefly reconstruct the argument and discuss three positivist accounts that accommodate the phenomenon of theoretical disagreement. I also argue that one of the common features of these positivistic responses is a tacit acceptance of a holistic and meta-philosophical perspective that allows theoretical disagreements to fit within the boundaries of the legal‒institutional framework. The holistic turn is no surprise given that Dworkin’s methodology is also in principio holistic. I conclude, however, that holistically pimped legal positivism – being a conscious close neighbour of legal realism – is a more reflective theory of law than the Dworkinian one.
Positivism
Legal positivism
Argument (complex analysis)
Surprise
Legal formalism
Phenomenon
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Much in recent discussions on legal positivism suggests that the controversy surrounding the notion turns on the distinction between inclusive and exclusive legal positivism.1 As a point of departure in distinguishing them, the separation principle is helpful.2 At the most general level, the separation principle – as Kenneth Einar Himma neatly puts it – denies ‘that there is necessary overlap’ between the law and morality.3 The separation principle counts, then, as the contradictory of the morality principle, according to which there is ‘necessary overlap’ between the law and morality, however this might be explicated.4 What the legal positivist’s
Legal positivism
Positivism
Legal formalism
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Citations (3)