Continuity and change in legal positivism
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
Learn more about PhilPapers
Law and Philosophy 17 (3):233-250 (1998)
Institutional theory of law (ITL) reflects both continuity and change of Kelsen's legal positivism. The main alteration results from the way ITL extends Hart's linguistic turn towards ordinary language philosophy (OLP). Hart holds –like Kelsen – that law cannot be reduced to brute fact nor morality, but because of its attempt to reconstruct social practices his theory is more inclusive. By introducing the notion of law as an extra-linguistic institution ITL takes a next step in legal positivism and accounts for the relationship between action and validity within the legal system. There are, however, some problems yet unresolved by ITL. One of them is its theory of meaning. An other is the way it accounts for change and development. Answers may be based on the pragmatic philosophy of Charles Sanders Peirce, who emphasises the intrinsic relation between the meaning of speech acts and the process of habit formation.
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
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.
Huib M. De Jong & Wouter G. Werner (1998). Continuity and Change in Legal Positivism. Law and Philosophy 17 (3):233 - 250.
Lars Vinx (2007). Hans Kelsen's Pure Theory of Law: Legality and Legitimacy. Oxford University Press.
F. Atria (1999). Legal Reasoning and Legal Theory Revisited. Law and Philosophy 18 (5):537-577.
Wilfrid J. Waluchow (1994). Inclusive Legal Positivism. Oxford University Press.
Scott J. Shapiro (2009). Was Inclusive Legal Positivism Founded on a Mistake? Ratio Juris 22 (3):326-338.
Thom Brooks (2007). Between Natural Law and Legal Positivism: Dworkin and Hegel on Legal Theory. Georgia State University Law Review 23 (3):513-60.
Robert P. George (ed.) (1996). The Autonomy of Law: Essays on Legal Positivism. Oxford University Press.
Huib M. De Jong & Wouter G. Werner (1998). Continuity and Change in Legal Positivism. Law and Philosophy 17 (3):233-250.
Added to index2009-01-28
Total downloads9 ( #350,937 of 1,792,140 )
Recent downloads (6 months)1 ( #464,595 of 1,792,140 )
How can I increase my downloads?