Search results for 'Legal positivism' (try it on Scholar)

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  1. Robert Alexy (2002). The Argument From Injustice: A Reply to Legal Positivism. Oxford University Press.
    At the heart of this book is the age-old question of how law and morality are related. The legal positivist, insisting on the separation of the two, explicates the concept of law independently of morality. The author challenges this view, arguing that there are, first, conceptually necessary connections between law and morality and, second, normative reasons for including moral elements in the concept of law.
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  2. Kenneth M. Ehrenberg (2011). The Anarchist Official: A Problem for Legal Positivism. Australian Journal of Legal Philosophy 36:89-112.
    I examine the impact of the presence of anarchists among key legal officials upon the legal positivist theories of H.L.A. Hart and Joseph Raz. For purposes of this paper, an anarchist is one who believes that the law cannot successfully obligate or create reasons for action beyond prudential reasons, such as avoiding sanction. I show that both versions of positivism require key legal officials to endorse the law in some way, and that if a legal (...)
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  3.  81
    Matthew H. Kramer (1999). In Defense of Legal Positivism: Law Without Trimmings. Oxford University Press.
    This book is an uncompromising defense of legal positivism that insists on the separability of law and morality. After distinguishing among three facets of morality, Kramer explores a variety of ways in which law has been perceived as integrally connected to each of those facets. The book concludes with a detailed discussion of the obligation to obey the law--a discussion that highlights the strengths of legal positivism in the domain of political philosophy as much as in (...)
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  4.  53
    Wilfrid J. Waluchow (1994). Inclusive Legal Positivism. Oxford University Press.
    This book develops a general philosophical theory about the nature of law and its relationship with morality called inclusive legal positivism. In addition to articulating and defending his own version of legal positivism, which is a refinement and development of the views of H.L.A. Hart as expressed in his classic book The Concept of Law, the author clarifies the terms of current jurisprudential debates about the nature of law. These debates are often clouded by failures to (...)
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  5. Thom Brooks (2007). Between Natural Law and Legal Positivism: Dworkin and Hegel on Legal Theory. Georgia State University Law Review 23 (3):513-60.
    In this article, I argue that - despite the absence of any clear influence of one theory on the other - the legal theories of Dworkin and Hegel share several similar and, at times, unique positions that join them together within a distinctive school of legal theory, sharing a middle position between natural law and legal positivism. In addition, each theory can help the other in addressing certain internal difficulties. By recognizing both Hegel and Dworkin as (...)
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  6.  47
    G. Pino (1999). The Place of Legal Positivism in Contemporary Constitutional States. Law and Philosophy 18 (5):513-536.
    The aim of the paper is that of discussing some recent antipositivist theses, with specific reference to the arguments that focus on the alleged incapability of legal positivism to understand and explain the complex normative structure of constitutional states. One of the central tenets of legal positivism (in its guise of ``methodological'' or ``conceptual'' positivism) is the theory of the separation between law and morality. On the assumption that in contemporary legal systems, constitutional law (...)
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  7.  34
    Anthony James Sebok (1998). Legal Positivism in American Jurisprudence. Cambridge University Press.
    This book represents a serious and philosophically sophisticated guide to modern American legal theory, demonstrating that legal positivism has been a misunderstood and underappreciated perspective through most of twentieth-century American legal thought. Anthony Sebok traces the roots of positivism through the first half of the twentieth century, and rejects the view that one must adopt some version of natural law theory in order to recognize moral principles in the law. On the contrary, once one corrects (...)
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  8.  71
    Robert P. George (ed.) (1996). The Autonomy of Law: Essays on Legal Positivism. Oxford University Press.
    This collection of original papers from distinguished legal theorists offers a challenging assessment of the nature and viability of legal positivism, a branch of legal theory which continues to dominate contemporary legal theoretical debates. To what extent is the law adequately described as autonomous? Should law claim autonomy? These and other questions are addressed by the authors in this carefully edited collection, and it will be of interest to all lawyers and scholars interested in (...) philosophy and legal theory. (shrink)
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  9. Mario Jori (ed.) (1992). Legal Positivism. New York University Press.
    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.
     
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  10.  84
    Tom Campbell (2004). Prescriptive Legal Positivism: Law, Rights and Democracy. Cavendish Publishing.
    Tom Campbell is well known for his distinctive contributions to legal and political philosophy over three decades. In emphasising the moral and political importance of taking a positivist approach to law and rights, he has challenged current academic orthodoxies and made a powerful case for regaining and retaining democratic control over the content and development of human rights. This collection of his essays reaches back to his pioneering work on socialist rights in the 1980s and forward from his seminal (...)
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  11.  1
    M. J. Detmold (1986). An Institutional Theory of Law New Approaches to Legal Positivism. Monograph Collection (Matt - Pseudo).
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  12.  70
    M. J. Detmold (1984). The Unity of Law and Morality: A Refutation of Legal Positivism. Routledge & Kegan Paul.
    I REASONS FOR ACTION.i Practical thought is concerned with action. Reasons for action are sometimes thought to be either conditional (conditional upon some ...
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  13.  57
    Kenneth Einar Himma, Legal Positivism. Internet Encyclopedia of Philosophy.
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  14. Tom Campbell & Jeffrey Denys Goldsworthy (2000). Judicial Power, Democracy and Legal Positivism. Monograph Collection (Matt - Pseudo).
     
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  15. Josep J. Moreso (ed.) (2007). Legal Theory: Legal Positivism and Conceptual Analysis: Proceedings of the 22nd Ivr World Congress, Granada 2005, Volume I = Teoría Del Derecho: Positivismo Jurídico y Análisis Conceptual. [REVIEW] Franz Steiner Verlag.
  16. David Plunkett (2013). Legal Positivism and the Moral Aim Thesis. Oxford Journal of Legal Studies 33 (3):563-605.
    According to Scott Shapiro’s Moral Aim Thesis, it is an essential feature of the law that it has a moral aim. In short, for Shapiro, this means that the law has the constitutive aim of providing morally good solutions to morally significant social problems in cases where other, less formal ways of guiding the activity of agents won’t work. In this article, I argue that legal positivists should reject the Moral Aim Thesis. In short, I argue that although there (...)
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  17.  17
    Andrei Marmor (2006). Legal Positivism: Still Descriptive and Morally Neutral. Oxford Journal of Legal Studies 26 (4):683-704.
    It has become increasingly popular to argue that legal positivism is actually a normative theory, and that it cannot be purely descriptive and morally neutral as H.L.A. Hart has suggested. This article purports to disprove this line of thought. It argues that legal positivism is best understood as a descriptive, morally neutral, theory about the nature of law. The article distinguishes between five possible views about the relations between normative claims and legal positivism, arguing (...)
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  18.  6
    Danny Priel (2006). Trouble for Legal Positivism. Legal Theory 12 (3):225-263.
    Many contemporary legal positivists have argued that legal theory is evaluative because it requires the theorist to make judgments of importance. At the same time they argue that it is possible to know without resort to evaluative considerations. I distinguish between two senses of : in one sense it refers to legal validity, in another to the content of legal norms, and I argue that legal positivism is best understood (as indeed some legal (...)
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  19.  10
    David Dyzenhaus (2004). The Genealogy of Legal Positivism. Oxford Journal of Legal Studies 24 (1):39-67.
    This article argues that legal positivism is best understood as a political tradition which rejects the Separation Thesis—the thesis that there is no necessary connection between law and morality. That tradition was committed for some time to eliminating the conceptual space in which the common law tradition and its style of reasoning operate. A genealogical reconstruction of the tradition shows that when positivist judges are forced to operate in that space, they have to adapt their own style of (...)
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  20.  1
    Matthew H. Kramer (2001). Dogmas and Distortions: Legal Positivism Defended. Oxford Journal of Legal Studies 21 (4):673-701.
    In a recent full‐length review of Matthew Kramer's In Defense of Legal Positivism, David Dyzenhaus has attacked legal positivists' accounts of adjudication and their views of the relationship between law and morality. The present essay defends legal positivism against his strictures, by arguing that he has misunderstood specific texts and the general lines of enquiry which the positivists pursue.
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  21.  19
    Tony Ward (2006). Two Schools of Legal Idealism: A Positivist Introduction. Ratio Juris 19 (2):127-140.
    This article provides a critical introduction to an issue fo Ratio Juris concerend with two contrasting schools of legal idealism: the so-called Sheffield School (Beyleveld, Brownsword and colleagues) and the “discourse ethics” school of Habermas and Alexy. The article focusses on four issues: (1) whether a "claim to correctness" is a necessary feature of law, (2) the connection between correctness and validity, (3) Alexy's argument for a "qualifying connection" between law and morality, and its counterpart in the Sheffield School's (...)
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  22.  3
    Brian Z. Tamanaha (2001). Socio-Legal Positivism and a General Jurisprudence. Oxford Journal of Legal Studies 21 (1):1-32.
    H.L.A. Hart described his classic book, The Concept of Law, as a work in «descriptive sociology», and his aspiration was to produce a general jurisprudence. He was less than successful in achieving both of these aims. This article attempts a comprehensive reconstruction of legal positivism in a manner that will render it more compatible with a sociological approach, and more amenable to the project of general jurisprudence. The label «socio-legal positivism» reflects the fact that this article (...)
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  23. Scott J. Shapiro (2009). Was Inclusive Legal Positivism Founded on a Mistake? Ratio Juris 22 (3):326-338.
    In this paper, I present a new argument against inclusive legal positivism. As I show, any theory which permits morality to be a condition on legality cannot account for a core feature of legal activity, namely, that it is an activity of social planning. If the aim of a legal institution is to guide the conduct of the community through plans, it would be self-defeating if the existence of these plans could only be determined through deliberation (...)
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  24. Matthew Kramer (1999). In Defense of Legal Positivism: Law Without Trimmings. Oxford University Press Uk.
    In Defense of Legal Positivism is an uncompromising defence of legal positivism that insists on the separability of law and morality. After distinguishing among three facets of morality, Matthew Kramer explores a variety of ways in which law has been perceived as integrally connected to each of those facets. Some of the chapters pose arguments against other major theorists such as David Lyons, Lon Fuller, Joseph Raz, Michael Detmold, Ronal Dworkin, Nigel Simmonds, John Finnis, Philip Soper, (...)
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  25. Robert Alexy (2002). The Argument From Injustice: A Reply to Legal Positivism. Oxford University Press Uk.
    At the heart of this book is the age-old question of how law and morality are related. The legal positivist, insisting on the separation of the two, explicates the concept of law independently of morality. The author challenges this view, arguing that there are, first, conceptually necessary connections between law and morality and, second, normative reasons for including moral elements in the concept of law. While the conceptual argument alone is too limited to establish a sufficiently strong connection between (...)
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  26. Jules L. Coleman (2009). Beyond Inclusive Legal Positivism. Ratio Juris 22 (3):359-394.
    In this essay, I characterize the original intervention that became Inclusive Legal Positivism, defend it against a range of powerful objections, explain its contribution to jurisprudence, and display its limitations and its modest jurisprudential significance. I also show how in its original formulations ILP depends on three notions that are either mistaken or inessential to law: the separability thesis, the rule of recognition, and the idea of criteria of legality. The first is false and is in event inessential (...)
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  27. Brian Bix (2006). Legal Positivism and 'Explaining' Normativity and Authority. American Philosophical Association Newsletter 5 (2 (Spring 2006)):5-9.
    It has become increasingly common for legal positivist theorists to claim that the primary objective of legal theory in general, and legal positivism in particular, is "explaining normativity." The phrase "explaining normativity" can be understood either ambitiously or more modestly. The more modest meaning is an analytical exploration of what is meant by legal or moral obligation, or by the authority claims of legal officials. When the term is understood ambitiously - as meaning an (...)
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  28.  14
    Kristen Rundle (2013). Form and Agency in Raz’s Legal Positivism. Law and Philosophy 32 (6):767-791.
    As two parts of one overarching legal positivist project, it is likely assumed that the constitutive elements of Joseph Raz’s analysis of the rule of law are compatible with his thinking on the nature of legal authority. The aim of this article is to call this assumption into question by reading Raz in light of the core, if under-recognised, preoccupation of the jurisprudence of Lon Fuller: namely, the latter’s concern to illuminate the relationship between the distinctive form of (...)
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  29. Joseph Raz, The Argument From Justice, or How Not to Reply to Legal Positivism.
    Professor Robert Alexy wrote a book whose avowed purpose is to refute the basic tenets of a type of legal theory which 'has long since been obsolete in legal science and practice'. The quotation is from the German Federal Constitutional Court in 1968. The fact that Prof Alexy himself mentions no writings in the legal positivist tradition [in English] later than Hart's The Concept of Law (1961) may suggest that he shares the court's view. The book itself (...)
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  30. Tom Campbell (1996). The Legal Theory of Ethical Positivism. Monograph Collection (Matt - Pseudo).
     
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  31.  51
    Matthew Grellette (2010). Legal Positivism and the Separation of Existence and Validity. Ratio Juris 23 (1):22-40.
    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 (...)
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  32.  68
    Vittorio Villa (2009). Inclusive Legal Positivism, Legal Interpretation, and Value-Judgments. Ratio Juris 22 (1):110-127.
    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. (...)
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  33.  25
    Torben Spaak (2003). Legal Positivism, Law's Normativity, and the Normative Force of Legal Justification. Ratio Juris 16 (4):469-485.
    In this article, I distinguish between a moral and a strictly legal conception of legal normativity, and argue that legal positivists can account for law's normativity in the strictly legal but not in the moral sense, while pointing out that normativity in the former sense is of little interest, at least to lawyers. I add, however, that while the moral conception of law's normativity is to be preferred to the strictly legal conception from the rather (...)
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  34.  55
    Pierluigi Chiassoni (2008). On the Wrong Track: Andrei Marmor on Legal Positivism, Interpretation, and Easy Cases. Ratio Juris 21 (2):248-267.
    Abstract. The paper argues for the following points: (1) Marmor's own understanding of "legal positivism" is different from the understanding defended, e.g., by Herbert Hart and Norberto Bobbio, and apparently misleads him into the wrong track of a theoretical inversion; (2) Marmor's two-stages model of (legal) interpretation—the understanding-interpretion model—provides no support for Marmor's own positivistic theory of law; (3) Marmor's concept of interpretation is at odds both with the basic tenets of Hartian and Continental methodological legal (...)
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  35. Klaus Füßer (1996). Farewell to 'Legal Positivism': The Separation Thesis Unravelling. In Robert P. George (ed.), The Autonomy of Law: Essays on Legal Positivism. Oxford University Press 119--62.
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  36.  5
    Mehmet Ruhi Demiray (2015). Natural Law Theory, Legal Positivism, and the Normativity of Law. The European Legacy 20 (8):807-826.
    This essay examines two dominant traditions in legal philosophy, the natural law theory and legal positivism, in terms of how they account for the normativity of law. I argue that, although these two traditions generally take the question of the normativity of law seriously and try to account for it, they are not successful in doing so. This failure in the prevailing literature on the philosophy of law, I suggest, nevertheless has an implicit reconstructive impact: the insights (...)
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  37.  4
    Michael Gordon (forthcoming). A Basis for Positivist and Political Public Law: Reconciling Loughlin's Public Law with Legal Positivism. Jurisprudence:1-29.
    This article analyses the work of Martin Loughlin on the nature of public law, and in particular, his ostensibly strident anti-positivism. It is argued that despite this, Loughlin's work can be reconciled with a normative account of legal positivism, based on the work of Jeremy Waldron. The article maintains that Loughlin's account of public law as political jurisprudence is methodologically compatible with, and potentially even substantively complementary to, normative legal positivism. It is ultimately suggested that (...)
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  38.  3
    Michael Gordon (forthcoming). A Basis for Positivist and Political Public Law: Reconciling Loughlin's Public Law with Legal Positivism. Jurisprudence:1-29.
    This article analyses the work of Martin Loughlin on the nature of public law, and in particular, his ostensibly strident anti-positivism. It is argued that despite this, Loughlin's work can be reconciled with a normative account of legal positivism, based on the work of Jeremy Waldron. The article maintains that Loughlin's account of public law as political jurisprudence is methodologically compatible with, and potentially even substantively complementary to, normative legal positivism. It is ultimately suggested that (...)
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  39.  15
    Henrique Schneider (2008). Legalism as Legal Positivism? Proceedings of the Xxii World Congress of Philosophy 40:163-168.
    The Rule of law often is considered to be a criterion for legal positivistic thinking. According to this maxim: can the Chinese Legalistic thinking of Shang Yang and Han Fei be considered as a sort of Legal Positivism? There are many positions shared by both, like the idea of a positive law or the binding character of the law despite of person and sympathies or even the concept of the law as a system. There is, however a (...)
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  40.  15
    Jakob V. H. Holtermann (2015). Getting Real or Staying Positive: Legal Realism, Legal Positivism and the Prospects of Naturalism in Jurisprudence. Ratio Juris 28 (1).
    The relationship between Legal Realism and Legal Positivism has been a recurrent source of debate. The question has been further complicated by the related difficulty of assessing the internal relationship between the two main original strands of Legal Realism: American and Scandinavian. This paper suggests considering American and Scandinavian Realism as instantiations of forward-looking and backward-looking rule skepticism respectively. This distinction brings into sharp relief not only the fundamentally different relationship between each of these two Realist (...)
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  41. Robert N. Moles (1987). Definition and Rule in Legal Theory: A Critique of H.L.A. Hart and the Positivist Tradition. B. Blackwell.
     
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  42.  16
    Charles Silver (1987). Elmer's Case: A Legal Positivist Replies to Dworkin. [REVIEW] Law and Philosophy 6 (3):381 - 399.
    I have argued that Legal Positivism can accommodate the existence oftheoretical disagreements in law and that Ronald Dworkin is wrongto claim otherwise. As far as Legal Positivists are concerned, evenjudges who differ over both the truth of propositions of law and thegrounds or sources of law can have a legal duty to resolve their dis-agreements on the basis of legal arguments. The duty exists whenconventional legal practice creates it. Moreover, all Anglo-Americanlegal systems impose the (...)
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  43.  12
    Vadim Verenich (2011). On Relationships Between the Logic of Law, Legal Positivism and Semiotics of Law. Sign Systems Studies 39 (2-4):145-195.
    The issue of reciprocal relationships between the logic of law, positivistic theory of the logic of law, and legal semiotics is among the most important questionsof the modern theoretical jurisprudence. This paper has not attempted to provide any comprehensive account of the modern jurisprudence (and legal logic).Instead, the emphasis has been laid on those aspects of positivist legal theories, logical studies of law and legal semiotics that allow tracing the common pointsor the differences between these paradigms (...)
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  44.  9
    Arthur Dyevre (2014). Law and the Evolutionary Turn: The Relevance of Evolutionary Psychology for Legal Positivism. Ratio Juris 27 (3):364-386.
    In the present essay, I consider the relevance of evolutionary psychology (EP) for legal positivism, addressing the two main traditions in the legal positivist family: (1) the tradition I identify with the works of Hart and Kelsen and characterize as “normativist,” as it tries to describe law as a purely or, at least, as an essentially normative phenomenon, while remaining true to the ideal of scientific objectivity and value-neutrality; (2) the tradition I broadly refer to as “ (...) realism,” which equates law with adjudication and “legal science” with the task of explaining judicial behaviour. (shrink)
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  45.  27
    Huib M. De Jong & Wouter G. Werner (1998). Continuity and Change in Legal Positivism. Law and Philosophy 17 (3):233-250.
    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 (...)
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  46. Kent Greenawalt (1996). Too Thin and Too Rich: Distinguishing Features of Legal Positivism. In Robert P. George (ed.), The Autonomy of Law: Essays on Legal Positivism. Oxford University Press 1--13.
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  47.  3
    Herlinde Pauer-Studer (2014). Kelsen’s Legal Positivism and the Challenge of Nazi Law. Vienna Circle Institute Yearbook 17:223-240.
    In this paper I am going to examine Kelsen’s legal positivism in the light of Nazilegal theory. My claim will be that Kelsen’s thesis that law and morality constitute two distinct normative spheres is highly plausible, but that some of his metaethical assumptions are seriously flawed.
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  48.  4
    Kenneth Henley (2006). Sovereignty, Augusto Pinochet, and Legal Positivism. Human Rights Review 8 (1):67-77.
    The imperativist strand of positivism derives law from an actual person or set of persons wielding a monopoly of force. The rule-based positivism of H.L.A. Hart has more sublty identified a matter-of-fact rule of recognition in place of such a sovereign one or many. But sovereignty is not a matter-of-fact of any kind; rather it is partly the product of what I call qua arguments. I reconstruct the reasoning, in the extradition case of Augusto Pinochet in the British (...)
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  49.  9
    Stefano Civitarese Matteucci (2010). Is Legal Positivism as Worthless as Many Italian Scholars of Public Law Depict It? Ratio Juris 23 (4):505-539.
    An increasing number of Italian scholars are beginning to share the idea that the conceptual basis of legal positivism (LP) is wrong, particularly in the field of Public Law. According to a group of theories called “neoconstitutionalism,” constitutionalism is to be understood not only as a principle based on the need to impose legal limits to political power, but also as an aggregation of values capable of continually remodelling legal relationships, positioning itself as a “pervasive” point (...)
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  50. M. H. & G. W. (1998). Continuity and Change in Legal Positivism. Law and Philosophy 17 (3):233-250.
    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 (...) 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. (shrink)
     
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