Ratio Juris 23 (1):22-40 (2010)
|Abstract||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.|
|Keywords||No keywords specified (fix it)|
|Through your library||Configure|
Similar books and articles
John Linarelli (2009). Analytical Jurisprudence and the Concept of Commercial Law. Penn State Law Review 114 (1):119-215.
Mark Greenberg (2006). Hartian Positivism and Normative Facts : How Facts Make Law II. In Scott Hershovitz (ed.), Exploring Law's Empire: The Jurisprudence of Ronald Dworkin. Oxford University Press.
Mario Jori (ed.) (1992). Legal Positivism. New York University Press.
Kenneth M. Ehrenberg (2011). The Anarchist Official: A Problem for Legal Positivism. Australian Journal of Legal Philosophy 36:89-112.
Robert P. George (ed.) (1996). The Autonomy of Law: Essays on Legal Positivism. Oxford University Press.
Scott J. Shapiro (2009). Was Inclusive Legal Positivism Founded on a Mistake? Ratio Juris 22 (3):326-338.
Francois Chevrette & Hugo Cyr, Legal Positivism? What Are You Talking About? ('De Quel Positivisme Parlez-Vous?').
Joseph Raz (1979). The Authority of Law: Essays on Law and Morality. Oxford University Press.
Vittorio Villa (2009). Inclusive Legal Positivism, Legal Interpretation, and Value-Judgments. Ratio Juris 22 (1):110-127.
G. Pino (1999). The Place of Legal Positivism in Contemporary Constitutional States. Law and Philosophy 18 (5):513-536.
Added to index2010-02-23
Total downloads31 ( #39,311 of 549,068 )
Recent downloads (6 months)1 ( #63,185 of 549,068 )
How can I increase my downloads?