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.
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 proponents of a (...) position lying in between natural law and legal positivist jurisprudence, we can gain clarity in why their general legal theories seem to fit uncomfortably, if indeed they can be said to fit at all, within so many different camps - while fitting comfortably in no particular camp - as well as highlight what has been overlooked. (shrink)
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 system can continue to (...) exist and function when its key officials reject the reason-giving character of law, then we have a reason to re-examine and amend legal positivism. (shrink)
Nietzsche’s favourable comments about science and the senses have recently been taken as evidence of naturalism. Others focus on his falsification thesis: our beliefs are falsifying interpretations of reality. Clark argues that Nietzsche eventually rejects this thesis. This article utilizes the multiple ways of being science friendly in Nietzsche’s context by focussing on Mach’s neutral monism. Mach’s positivism is a natural development of neo-Kantian positions Nietzsche was reacting to. Section 15 of Beyond Good and Evil is crucial to Clark’s (...) interpretation. The presented interpretation makes better sense of this passage and shows that Nietzsche can accept both falsification and empiricism. (shrink)
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 book, (...) The Legal Theory of Ethical Positivism (1996). An introductory essay provides an historical overview of Professor Campbell's work and argues for the continuing importance of 'democratic positivism' at a time when it is again becoming clear that courts are ineffective protectors of human rights. (shrink)
In this collection of essays one of the preeminent philosophers of science writing today offers a reinterpretation of the enduring significance of logical positivism, the revolutionary philosophical movement centered around the Vienna Circle in the 1920s and '30s. Michael Friedman argues that the logical positivists were radicals not by presenting a new version of empiricism (as is often thought to be the case) but rather by offering a new conception of a priori knowledge and its role in empirical knowledge. (...) This collection will be mandatory reading for any philosopher or historian of science interested in the history of logical positivism in particular or the evolution of modern philosophy in general. (shrink)
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 legal philosophy and legal theory.
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 appreciate that (...) different theorists are offering different kinds of theories and attempting to answer different questions. The clarity of Waluchow's work will help to remove the confusion often present in jurisprudential debate. (shrink)
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 the domain (...) of jurisprudence. (shrink)
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 represents a point (...) of intersection between law and basic moral values, antipositivists contrast legal positivism with two main arguments. First, on a more general level, the positivist theory of the separation between law and morality is questioned; then, and consequently, the ``neutrality thesis'' in the juristic study of law is rejected. The author discusses both these antipositivist arguments, and offers a brief defence of methodological positivism. (shrink)
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 for the mistakes (...) of formalism and postwar legal process, one is left with a theory of legal positivism that takes moral principles seriously while avoiding the pitfalls of natural law. The broad scope of this book ensures that it will be read by philosophers of law, historians of law, historians of American intellectual life, and those in political science concerned with public law and administration. (shrink)
By the lights of a central logical positivist thesis in modal epistemology, for every necessary truth that we know, we know it a priori and for every contingent truth that we know, we know it a posteriori. Kripke attacks on both flanks, arguing that we know necessary a posteriori truths and that we probably know contingent a priori truths. In a reflection of Kripke's confidence in his own arguments, the first of these Kripkean claims is far more widely accepted than (...) the second. Contrary to received opinion, the paper argues, the considerations Kripke adduces concerning truths purported to be necessary a posteriori do not disprove the logical positivist thesis that necessary truth and a priori truth are co-extensive. (shrink)
In Unifying Biology, Smocovitis offers a series of claimsregarding the relationship between key actors in the synthesisperiod of evolutionary studies and positivism, especially claimsentailing Joseph Henry Woodger and the Unity of Science Movement.This commentary examines Woodger''s possible relevance to key synthesis actors and challenges Smocovitis'' arguments for theexplanatory relevance of logical positivism, and positivism moregenerally, to synthesis history. Under scrutiny, these arguments areshort on evidence and subject to substantial conceptual confusion.Though plausible, Smocovitis'' minimal interpretation – that somegeneralised (...) form of Comtean positivism had a role in synthesishistory – requires more of an evidential basis and must engageexisting scholarship on epistemic reforms in the biological sciencesprior to the synthesis period. Smocovitis is right to investigateepistemology in the synthesis period of evolutionary studies and tolook for links to wider changes in science and philosophy. However,in its present form, Unifying Biology fails to support herbasic interpretation. (shrink)
Among contemporary forms of constitutionalism, Luigi Ferrajoli’s Garantismo may be considered as the rather unfashionable attempt to build up a comprehensive and multi-layered theory, which still takes seriously the positivist heritage. This paper offers, in brief outline, a synthetic view of the social setting, the philosophical background, and the basic features of this conception of constitutionalism, when compared with legal positivism and other mainstream forms of (neo)constitutionalism.
This paper is concerned with the reversal in meaning of the word positivism, which has come to mean ‘theory which assumes the existence of a world beyond our ideas’ whereas once it meant ‘theory which is agnostic about the existence of a world beyond our ideas', and with educational writers’ persistent mistakes in using quotation marks, as a consequence of this reversal.
Hans Ruin and Patrick Heelan join me in celebrating the rise of post-positivist and phenomenological approaches to scientific and technological practice. Yet as they both know, I am also concerned that the very presence of all the new accounts which give voice to this trend may tempt us into concluding prematurely that the traditional understanding of science and technology has already been displaced. With especially Ruin’s encouragement, I expand my original discussion of this concern by explaining why I agree with (...) him about the ontologically mistaken suppositions that one might become post-positivistic by doing philosophy “meta-philosophically,” or become phenomenological by making “life” more basic that “nature.”. (shrink)
This book provides a detailed, systematic reconsideration of the neglected nineteenth-century positivist Auguste Comte. Apart from offering an accurate account of what Comte actually wrote, the book argues that Comte's positivism has never had greater contemporary relevance than now. The aim of the first part of the book is to rescue Comte from the influential misinterpretation of his work by John Stuart Mill. The second part argues that this deep historically-minded concern with the tradition of philosophy for current philosophical (...) practice places Comte in the same camp as such well-known post-positivists as Richard Rorty, Charles Taylor, and Hilary Putnam. Professor Scharff concludes that, even though he was the first positivist, Comte is also the only positivist who retains his relevance today. (shrink)
Several lines of argument support the notion that the legacy of positivism (if cast in terms of the realist/instrumentalist debate) is more realist than not. Work by Joia Lewis and Alberto Coffa on both Schlick and Carnap is cited, and contemporary work from Van Fraassen and Boyd briefly alluded to. Note is made of the differences within contemporary realist theory, and it is included that Carnap's essay "Empiricism, Semantics and Ontology" is crucial for resolution of the debate. In closing (...) it is noted that the spirit of much of the original positivist work reinforced the contention than those who work within the framework of science do in fact accept the reality of key scientific entities. (shrink)
Has the emergence of post-positivism in philosophy of science changed the terms of the “is/ought” dichotomy? If it has demonstrated convincingly that there are no “facts” apart from the theoretical frames and evaluative standards constructing them, can such a cordon sanitaire really be upheld between “facts” and values? The point I wish to stress is that philosophy of science has had a central role in constituting and imposing the fact/value dichotomy and a revolution in the philosophy of science should (...) not leave the dichotomy unaffected. The connection between post-positivism and naturalism will be my guiding thread in considering this “last dogma of positivism.” First this essay will specify the sense of naturalism that it will take to be essential to the post-positivist philosophy of science: the deflation of the notion of the “purity” of scientific knowledge. Then it will turn to the question of the implications that follow for the “autonomy” of ethics, including the danger posed by a new form of scientistic reductionism. (shrink)
Depending on the realist or instrumentalist twist that is given to positivism, interesting arguments can be made for both causal and classical theories of reference with regard to the use of scientific terms in the language of theory. But my claim is that the rigid foundationalism that supports the theoretical terms via the correspondence rules of the Received View undercuts the notion that it is possible to argue coherently for a causal theory of reference as allied to a positivistic (...) view. (shrink)
This paper argues that one can empirically test, via positivist methods, the post-modern attack on positivist epistemologies: Postmodern perspectives hold Knowledge and Truth to be intersubjective, consensus-driven social constructions. But traditional scientific approaches to knowledge, exemplified here by the cognitive social psychology of persuasion, seem oblivious to this and continue to detach the study of attitudes, beliefs, and emotions from that of knowledge, facts, and reason. Abandoning these artificial distinctions in both epistemology and method would enable this social psychology, reconstituted (...) as a Sociology of Persuasion, to contribute greatly to illuminating the processes of Truth and Knowledge construction in social interaction. Moreover, this would facilitate academic engagement in civic discourse. (shrink)
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.
This book gives a unique historical and interpretive analysis of a widely pervasive mode of thought that it describes as the legacy of positivism. Viewing Auguste Comte as a pivotal figure, it charts the historical origins of his positivism and follows its later development through John Stuart Mill and Emile Littre. It shows how epistemological shifts in positivism influenced parallel developments in the human and legal sciences, and thereby treats legal positivism and positivism as it (...) is understood in the human sciences within a common framework. (shrink)
The Religion of Humanity, first expounded by the founder of Positivism, Auguste Comte, focused the minds of a wide range of prominent Victorians on the possibility of replacing Christianity with an alternative religion based on scientific principles and humanist values. This new book traces the impact of Comte's 'religion' on Victorian Britain, showing how its ideas were championed by John Stuart Mill and George Henry Lewes before being institutionalised by Richard Congreve and Frederic Harrison, the leaders of the two (...) main centres of Positivist worship. Widely discussed by scientists, philosophers, and theologians, it also attracted the attention of numerous literary figures, including Matthew Arnold, Walter Pater, and Leslie Stephen, achieving its widest circulation through the works of George Eliot, Thomas Hardy, and George Gissing. A wide-ranging and interdisciplinary contribution to the history of ideas, this book sheds new light on a significant but hitherto neglected strand of Victorian thought. (shrink)
At the heart of contemporary relativism, is the idea that the world has no mind-independent characteristics. As there is no way that the world is on its own, any opinions held may be regarded as valid. Critical realism is a promising alternative to such a position. Critical realism allows for the conclusion that certain processes lead to specific outcomes regardless of how we think about them, which in turn places a limited but crucial check on relativism. Groff defends "realism about (...) causality" through close discussions of Kant, Hilary Putnam, Brain Ellis and Charles Taylor, among others. In so doing she affirms critical realism, but with several important qualifications. In particular, she rejects the theory of truth advanced by Roy Bhaskar. She also attempts to both clarify and correct earlier critical realist attempts to apply realism about causality to the social sciences. By connecting issues in metaphysics and philosophy of science to the problem of relativism, Groff bridges the gap betweenthe philosophical literature and broader debates surrounding socio-political theory and poststructuralist thought. This unique approach will make the book of interest to philosophers and socio-political theorists alike. (shrink)
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 approach, (...) and (4) Alexy's case for the "Radbruch formula": that "extreme injustice is not law”. While rejecting both versions of the case for legal idealism, I argue that both schools offer vaulable, and broadly similar, insights into what makes a legal system morally legitimate. (shrink)