David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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Ratio Juris 23 (1):22-40 (2010)
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.
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References found in this work BETA
John Finnis (1980/1979). Natural Law and Natural Rights. Oxford University Press.
H. L. A. Hart (1994). The Concept of Law. Oxford University Press.
Kenneth Himma (2005). Final Authority to Bind with Moral Mistakes: On the Explanatory Potential of Inclusive Legal Positivism. [REVIEW] Law and Philosophy 24 (1):1-45.
Matthew H. Kramer (1999). In Defense of Legal Positivism: Law Without Trimmings. Oxford University Press.
Matthew H. Kramer (2008). Where Law and Morality Meet. Oxford University Press.
Citations of this work BETA
Kenneth Ehrenberg (2013). Functions in Jurisprudential Methodology. Philosophy Compass 8 (5):447-456.
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