Online research in philosophy

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.

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.

Machine generated contents note: -- 1. The Value of Vagueness, Timothy Endicott -- 2. Vagueness and the Guidance of Action, Jeremy Waldron -- 3. What Vagueness and Inconsistency tell us about Interpretation, Scott Soames -- 4. Textualism and the Discovery of Rights, John Perry -- 5. The Intentionalism of Textualism, Stephen Neale -- 6. Can the Law Imply More than It Says? On some pragmatic aspects of Strategic Speech, Andrei Marmor -- 7. Modeling Legal Rules, Richard Holton -- 8. Trying to Kill the Dead: De Dicto and De Re Intention in Attempted Crimes, Gideon Yaffe -- 9. Philosophy of Language and the Law of Contracts, Gideon Rosen -- 10. Language and Law: Who's in Charge?, Mark Greenberg -- 11. Meaning and Impact, Nicos Stavropoulos.

Of all the concepts in use in the legal discourse, "legal positivism" is certainly one of the most polysemous. This is why one currently runs the risk of being misunderstood when making use of it. In particular, there is a sharp distinction between how legal theorists use the concept and how it is most often used by other legal scholars and legal practicioners. This paper attempts to succinctly present a typology of the different uses of the concept in order to facilitate more fruitful discussions. We have classified the different uses of the concept in three broad categories: (1) legal positivism as a methodological approach to the study of law; (2) legal positivism as a theory of law; and (3) legal positivism as an ideology. Each category is further subdivided so as to highlight different currents in the use of the concept within each category.

Interest in interpretation has emerged in recent years as one of the main intellectual paradigms of legal scholarship. This collection of new essays in law and interpretation provides the reader with an overview of this important topic, written by some of the most distinguished scholars in the field. The book begins with interpretation as a general method of legal theorizing, and thus provides critical assessment of the recent "interpretative turn" in jurisprudence. Further chapters include essays on the nature of interpretation, its objectivity, the possible determinacy of legal standards, and their nature. Concluding with a series of articles on the role of legislative intent in the interpretation of statutes, this work offers new and refreshing insights into this old controversy.

Using a theory of social conventions and an analysis of law's authoritative nature, this book sets out the scope of law in relation to moral and other critical values. Marmor argues that law is founded on constructive conventions, and that consequently moral values cannot determine what the law is. He also provides an analysis of the concept of objectivity, arguing that many aspects of the law, and of moral values, are metaphysically objective.

What can a philosophical analysis of the concept of interpretation contribute to legal theory? In his recent book,Interpretation and Legal Theory, Andrei Marmor proposes a complex and ambitious analysis as groundwork for his positivist assault on “interpretive” theories of law and of language. I argue (i) that the crucial element in Marmor's analysis of interpretation is his treatment of Ludwig Wittgenstein's remarks on following rules, and (ii) that a less ambitious analysis of interpretation than Marmor's can take better advantage of those insights about rules. I explore some implications of such an analysis for the role of interpretation in legal reasoning.