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)
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)
CHAPTER I THE INTELLECTUAL CHARACTER OF POSITIVISM The object of The object of all true Philosophy is Philosophy is to frame a system which shall compre- to ...
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.
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)
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)
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)
FOE, some time much has been said, in England and on the Continent, concerning " Positivism " and " the Positive Philosophy." Those phrases, which during ...
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)
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)
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.
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)
I REASONS FOR ACTION.i Practical thought is concerned with action. Reasons for action are sometimes thought to be either conditional (conditional upon some ...
Originally written in 1956 and revised in 1972, this book explores the work of many of the most important thinkers of the 20th century, including Ayer, ...
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)
Chapter INTRODUCTION: OTTO NEURATH, THE VIENNA CIRCLE AND THE PROTOCOL SENTENCE DEBATE Everybody familiar with contemporary analytical philosophy is likely ...
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)
CHAPTER I1 BIOLOGY i BICHAT" Six months have passed since the centenary of the death of Bichat, which took place, in his thirty-first year, on July 22, ...
A general consensus has emerged in the scholarship on Latin American thought dating from the latter half of the nineteenth century through the first quarter of the twentieth. Latin American intellectuals widely adapted the European philosophy of positivism in keeping with the demands of their own social and political contexts, effectively making positivism the second most important philosophical tradition in the history of Latin America, after scholasticism. However, as thinkers across Latin America faced the challenges of the twentieth (...) century, they grew increasingly disappointed with positivism, so that “anti-positivism” stands out as a defining feature of Latin American philosophy in the early twentieth century. In this essay, I challenge or at least add nuance to this widely accepted narrative by demonstrating considerable continuity rather than simple rupture between positivism and “anti-positivism” in Latin America. I focus on Mexico, where both positivism and the reaction against it are generally taken to have been strongest, or at least most politically significant. After tracing the history of positivism’s transformations in Mexico from Auguste Comte (1798-1857) to Gabino Barreda (1818-1881) to Justo Sierra (1848-1912), I show how Mexico’s leading “anti-positivist” philosophers—José Vasconcelos (1882-1959) and Antonio Caso (1883-1946)—draw substantially upon their positivist predecessors. (shrink)
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 on the merits. (...) I also argue that, insofar as inclusive legal positivism was developed as a response to Ronald Dworkin's critique of H. L. A. Hart's theory of law, it was founded on a mistake. For once we appreciate the role that planning plays in legal regulation, we will see that Dworkin's objection is based on a flawed conception of legal obligations and rights and hence does not present an objection that inclusive legal positivists were required to answer. (shrink)
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 explanation of how conventional and (...) other empirical facts can give rise to moral obligations - as many legal positivist theorists seem to be using the phrase, the project is contrary to basic tenets of legal positivism, and has regularly led theorists to propose doubtful theories that ignore "is"/"ought" divisions. (shrink)
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 may be evidence (...) to the contrary. After all why flog a dead horse? Why write a book to refute a totally discredited theory? Perhaps Alexy was simply unlucky. The burst of reflective, suggestive and interesting writings in the legal positivist tradition reached serious dimensions only in the years after the original publication of his book, when Waldron, Marmor, Gardner, Leiter, Shapiro, Murphy, Himma, Kramer, Endicott, Lamont, Dickson, Bix and others joined those who had made important contributions to legal theory in the positivistic tradition in the years preceding the original publication of Alexy's book: Lyons, Coleman, Campbell, Harris, Green, Waluchow and others, who are still among the main contributors to legal theory in the positivist tradition. It is a great shame that nothing in these writings influenced the arguments of the book. Perhaps this regret is misplaced. After all ‘positivism' in legal theory means, and always did mean, different things to different people. What Radbruch, one of Alexy's heroes, meant when he first saw himself as a legal positivist and then recanted was not the same as what 'legal positivism' means in Britain (and nowadays in the United States as well) among those who engage in philosophical reflection about the nature of law. Perhaps Alexy is simply addressing himself to a German audience, and refuting, or attempting to refute, legal theories of a kind identified in Germany as 'legal positivism'. Perhaps, though his references to Hart show that he does not intend it that way. My aims in this chapter are, however, reasonably clear. My main purpose is to explore whether any of Alexy's arguments challenge any of the views which I have advocated. Subsidiary aims are, first, to clarify why what Alexy says is legal positivism is not what is understood as such in the English speaking world, so that some of Alexy's sound points find no target; secondly, to try and clarify some of his arguments which I found, at least initially, rather obscure. Given the prominence of Alexy's book I will refer only to it, and will not consider his other publications. (shrink)
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 to (...) legal positivism. The second is inessential to legal positivism. The third is likely inessential to law. I then characterize the central claim of ILP in a way that relies on none of these: ILP is the claim that necessarily social facts determine the determinants of legal content. I show that ILP so conceived leaves the central debates in law largely untouched. I suggest how the most fundamental of these—the question of the normativity of law—at least can be usefully addressed. The essay closes by suggesting that even though one can distinguish the social from the normative dimensions of law, a theory of the nature of law is necessarily an account of the relationship between the two: It is a theory either of the difference that certain distinctive social facts make in normative space, or it is an account of the distinctive normative difference that law makes, and the social and other facts that are necessary to explain that difference. One can distinguish between but one cannot separate the social from the normative aspects of legality. (shrink)
Some philosophers argue that many contemporary debates in metaphysics are “illegitimate,” “shallow,” or “trivial,” and that “contemporary analytic metaphysics, a professional activity engaged in by some extremely intelligent and morally serious people, fails to qualify as part of the enlightened pursuit of objective truth, and should be discontinued” (Ladyman and Ross, Every thing must go: Metaphysics naturalized , 2007 ). Many of these critics are explicit about their sympathies with Rudolf Carnap and his circle, calling themselves ‘neo-positivists’ or ‘neo-Carnapians.’ Yet (...) despite the fact that one of the main conclusions of logical positivism was that metaphysical statements are meaningless, many of these neo-positivists are themselves engaged in metaphysical projects. This paper aims to clarify how we may see a neo-positivist metaphysics as proceeding in good faith, one that starts with serious engagement with the findings of science, particularly fundamental physics, but also has room for traditional, armchair methods. (shrink)
This is the penultimate draft of a paper originally presented at the Hart-Fuller at 50 conference, held at the NYU Law School in February 2008. A revised version will appear in the NYU Law Review. The paper seeks to clarify and assess HLA Hart's famous claim that legal positivism somehow involves a 'separation of law and morals.' The paper contends that Hart's 'separability thesis should not be confused with the 'social thesis,' with the 'sources thesis,' or with a methodological (...) thesis about jurisprudence. Hart's thesis denies the existence of necessary (conceptual) connections between law and morality. But that thesis is false: there are many necessary connections between law and morality, some of them conceptually significant. Among these is an important negative connection: law is of its nature morally fallible and morally risky. Lon Fuller emphasised the 'internal morality of law,' the 'morality that makes law possible'. Hart stressed that there is also an immorality that law makes possible. Law's nature is seen not only in its internal virtues, in legality, but also in its internal vices, in legalism. (shrink)
This interdisciplinary paper identifies principles of an affluent country (im)migration policy that avoids: (1) the positivist inclusion/exclusion mechanism of liberalism and communitarianism; and (2) the idealism of most cosmopolitan (im)migration theories. First, I: (a) critique the failure of liberalism and communitarianism to consider (im)migration under distributive justice; and (b) present cosmopolitan (im)migration approaches as a promising alternative. This paper’s central claim is that cosmopolitan (im)migration theory can determine normative shortcomings in (im)migration policy by coupling elements of Frankfurt School methodology to (...) case studies of (im)migration regimes. Lastly, I apply this analytical procedure to recent special changes in Spanish and UK immigration law. (shrink)
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. This is the (...) case, for instance, with regard to the value-freedom principle, which is commonly accepted by inclusive positivist scholars. In contrast with this approach, I try to show, in the concluding section, how a constructivistic version of inclusive positivism could legitimately acknowledge the presence of value-judgments in the cognitive activities of jurists and legal theorists. (shrink)
I defend against criticism the following claims concening Thomas Kuhn: (i) there is a strong naturalist streak in The structure of scientific revolutions, whereby Kuhn used the results of a posteriori enquiry in addressing philosophical questions; (ii) as Kuhn's career as a philosopher of science developed he tended to drop the naturalistic elements and to replace them with more traditionally philosophical a prior approaches; (iii) at the same there is a significant residue of positivist thought in Kuhm, which Kuhn did (...) not recognise as such; (iv) the naturalist elements referred to in (i) are the most original and fruitful elements of Kuhn's thinking; (v) the positivistic elements referred to in (iii) vitiated his thought and acted as factors in preventing Kuhn from developing the naturalistic elemtns and from following the path taken by much subsequent philosophy of science. Preston presents an alternative reading of Kuhn which emphasizes the Wittgensteinian elements in Kuhn. I argue that this alternative view is, descriptively, poorly supported by the textual evidence and the facts of the history of philosophy of science in the twentieth century. I provide some defence of the naturalistic approach and related themes. (shrink)
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 positivism, on (...) the one hand, and with the actual practice of legal interpretation in the Western world, on the other hand; (4) Marmor's concept of an easy case is likewise objectionable. (shrink)
In this paper I explore a positivist methodological tradition in early demand theory, as exemplified by several common traits that I draw from the works of V. Pareto, H. L. Moore and H. Schultz. Assuming a current approach to explanation in the social sciences, I will discuss the building of their various explanans, showing that the three authors agreed on two distinctive methodological features: the exclusion of any causal commitment to psychology when explaining individual choice and the mandate to test (...) the truth of demand theory on aggregate data by statistical means. However, I also contend, from an epistemological point of view, that the truth of demand theory was conceived of in three different ways by our authors. Inspired by Poincaré, Pareto assumed that many different theories could account for the same data on individual choice, coming close to a kind of conventionalism -though I prefer to refer to this position as theoreticism. Moore was himself akin to Pearson's approach, which could be named descriptivist insofar as it resolved scientific laws into statistical descriptions of the data. Finally, Schultz tried to reconcile both approaches in an adequationist stance with no success, as we shall see. (shrink)
In this article I discuss a number of issues raised by Professor Jules Coleman's recent article "Beyond the Separability Thesis." I suggest, to begin, that Coleman is correct that neither a narrow nor a broad formulation of the separability thesis takes us very far towards a robust distinction between legal positivism and legal non-positivism. I then offer a brief discussion of methodology in jurisprudence, suggesting that Coleman accepts, at least implicitly, what I call a "methodology of necessary features." (...) Since there is reason to think that law possesses some necessary features that are non-normative (or descriptive) and others that are moral in character, the promise of this pluralistic approach is that it will be capable of bridging the gap between so-called "descriptive" and "normative" theories of methodology in jurisprudence. Since the distinction between descriptive and normative methodological theories is sometimes taken to be one way, among others, of drawing a distinction between positivist and non-positivist theories of law, the pluralism of the "methodology of necessary features" gives us yet one more reason to think that the distinction between positivism and non-positivism is not a theoretically fundamental one. Finally, I discuss Coleman's "moral semantics claim," i.e., the idea that "legal content is best understood as moral directives about what is to be done and who is to decide what is to be done." Coleman acknowledges that the moral semantics claim, when taken together with the social facts thesis, raises a well-known problem: How can social facts create content-independent reasons for action? I suggest that we are most likely to find the answer to this question by focusing directly on whether or not law's claimed moral authority—meaning its claimed moral power—can be justified, rather than by focusing indirectly, as many theorists have done, on the existence or non-existence of a general obligation to obey the law. (shrink)
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. (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)
In this paper, I deploy an argument that I have developed in a number of recent papers in the service of three projects. First, I show that the most influential version of legal positivism – that associated with H.L.A. Hart – fails. The argument’s engine is a requirement that a constitutive account of legal facts must meet. According to this rational-relation requirement, it is not enough for a constitutive account of legal facts to specify non-legal facts that modally determine (...) the legal facts. The constitutive determinants of legal facts must provide reasons for the obtaining of the legal facts (in a sense of “reason” that I develop). I show that the Hartian account is unable to meet this requirement. That officials accept a rule of recognition does not by itself constitute a reason why the standards specified in that rule are part of the law of the community. I argue that it is false that understanding the explanatory significance of officials’ acceptance of a rule is part of our reflective understanding of the nature of law. The second project of the paper is to respond to a family of objections that challenge me to explain why normative facts and descriptive facts together are better placed to provide reasons for legal facts than descriptive facts alone. A unifying theme of the objections is that explanations have to stop somewhere; descriptive facts, it is suggested, are no worse a stopping place than normative facts. Third, the paper spells out a consequence of the rational-relation requirement: if an account of what, at the most basic level, determines legal facts is true in any possible legal system, it is true in all possible legal systems. For example, if a Hartian account of legal facts is true in any possible legal system, it is true in all possible legal systems. I use this all-or-nothing result in my critique of a Hartian account, but the result is of interest in its own right. (shrink)
Can one consistently (i) be a positivist, and (ii) think that the internal attitude to the law is a moral attitude? Two objections are raised in the literature. The first is that the combination is straight-out contradictory. The second is that if the internal attitude is a moral attitude, those who take it cannot be positivists. Arguments from Shiner, Goldsworthy and Raz are examined. It is concluded that neither objection works. The arguments are based on scope errors, conflations of what (...) is said with what is implicated, and a false view of the distinction between detached and committed statements. (shrink)
According to the standard account, logical positivism was the philosophical foundation of psychological neo-behaviorism. Smith (1986) has questioned this interpretation, suggesting that neo-behaviorism drew its philosophical inspiration from a different tradition, one more in keeping with naturalistic epistemology. Smith does not deny, however, the traditional interpretation of the philosophy of logical positivism, which sets it apart from naturalistic epistemology. In this article I suggest (following recent historical scholarship) that a more careful reading of the leading figure of logical (...)positivism, Rudolph Carnap, shows an important naturalistic component in his philosophy. Hence, we must reevaluate our standard interpretation of the philosophy of logical positivism and its relation to psychological neo-behaviorism. (shrink)
A post-positivist understanding of ecological science and the call for an “ecological ethic” indicate the need for a radically new approach to evaluating environmental change. The positivist view of science cannot capture the essence of environmental sciences because the recent work of “reflexive” ecological modelers shows that this requires a reconceptualization of the way in which values and ecological models interact in scientific process. Reflexive modelers are ecological modelers who believe it is appropriate for ecologists to examine the motives for (...) their choices in developing models; this self-reflexive approach opens the door to a new way of integrating values into public discourse and to a more comprehensive approach to evaluating ecological change. This reflexive building of ecological models is introduced through the transformative simile of Aldo Leopold, which shows that learning to “think like a mountain” involves a shift in both ecological modeling and in values and responsibility. An adequate, interdisciplinary approach to ecological valuation, requires a re-framing of the evaluation questions in entirely new ways, i.e., a review of the current status of interdisciplinary value theory with respect to ecological values reveals that neither of the widely accepted theories of environmental value—neither economic utilitarianism nor intrinsic value theory (environmental ethics)—provides a foundation for an ecologically sensitive evaluation process. Thus, a new, ecologically sensitive, and more comprehensive approach to evaluating ecological change would include an examination of the metaphors that motivate the models used to describe environmental change. (shrink)
Sayer argues that Popper defended a logicist philosophy of science. The problem with such logicism is that it creates what is termed here as a `truncated foundationalism', which restricts epistemic certainty to the logical form of scientific theories whilst having nothing to say about their substantive contents. Against this it is argued that critical realism, which Sayer advocates, produces a linguistic version of truncated foundationalism and that Popper's problem-solving philosophy, with its emphasis on developing knowledge through criticism, eschews all forms (...) of foundationalism and is better able to account for the development of substantive knowledge claims. Key Words: critical realism • fallibilism • logicism • post-positivism • truncated foundationalism. (shrink)
In a quartet of books, Neil MacCormick develops in great detail his institutional theory of law. According to this theory, law is an institutional normative order. As we shall see, save for one key difference, MacCormick's institutional theory of a legal system closely parallels Hart's positivist theory. Though his theory of a legal system looks very much like Hart's positivist theory, he concludes that a central positivist tenet is false. He argues that, contra positivism, moral considerations are necessarily determinants (...) of a legal system's laws; for, on his account, radically unjust norms necessarily are not law. Thus, MacCormick theory presents us with a surprising juxtaposition - in his words, a post-positivist synthesis of positivism and natural law theory. In this essay, I examine whether it is possible to reach a natural law conclusion on the basis of what is traditionally taken to be a positivist foundation. I argue that MacCormick's and Julie Dickson's attempts (on MacCormick's behalf) to do this are not promising. However, I also argue that MacCormick's theory of law has resources for a more promising approach to this argument, and I attempt to mine these resources. (shrink)
Husserl’s phenomenology opens itself with a critique of positive sciences. Husserl problematizes the hardcore presupposition of positivism that the world is a definite sort of an existential totality of objects and thus it is exhaustible with empirical data and deductive-conceptual abstraction on the basis of causalspatio-temoprality. Criticizing the wholesome reduction of nature into a physical reality and the instrumentalizing of theoretical reason, he proposes transcendental phenomenology, as an ideal form of science. Self-entitled as the genuine science, the science of (...) origin, the science of all sciences, etc., it concerns itself with the matter of validity. Claiming that validating objectivity as such and the meaning of scientific objectification is something of which onlyphenomenological reflection on pure consciousness is capable and that the positivistic objectivity is and must be founded on transcendental subjectivity, Husserl radically idealistically revised the whole positivistic concept of evidence and givenness of a fact and substituted it with the phenomenological notion of apriori self-evidence and originary givenness of primordial intentional consciousness. Nevertheless, it is noticed that the absolute universal validity of positivistic objectivity was never rejected or questioned; objectivity is still in and of itself an absolute criterion of scientificity in Husserl. This paper will argue that the idealistic turn toward subjectivity takes place through factualization of transcendentality and this, by bestowing apriori apodicticity with facticity, even enhances more the supreme epistemological function of positivity. It will discuss such positivistic drive, directly bequeathed from the very cultural ethos at which phenomenological criticism targeted, as an important locomotive for Husserl’s program and point out an antinomical consequence with which it is to be faced as a consequence. (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)
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. (shrink)
Logical positivism is widely associated with an illiberal technocratic view of politics. This view is a caricature. Some members of the left Vienna circle were explicit in their criticism of this conception of politics. In particular, Neurath's work attempted to link the internal epistemological pluralism and tolerance of logical empiricism with political pluralism and the rejection of a technocratic politics. This paper examines the role that unified science played in Neurath's defence of political and social pluralism. Neurath's project of (...) unified science addressed problems that lie at the centre of recent debates around liberalism concerning the possibility of social co-operation in conditions of pluralism. His response is distinctive in calling upon an empiricist tradition that differs from Kantian proceduralist approaches that have predominated in recent liberalism. While Neurath's position has problems, it deserves reconsideration, especially in so far as it questions the Kantian assumption that a thin language of abstract rights provides the best basis for the cosmopolital lingua franca required by conditions of social pluralism. An investigation of the role that unified science plays in Neurath's politics also gives reasons for revising common misconceptions about the nature of the unity of science programme itself. (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.
[Alan W. Richardson] This essay explores the uses that Michael Friedman and Bas van Fraassen have recently made of the work of Hans Reichenbach. It uses Friedman's work to complicate van Fraassen's invocation of Reichenbach's voluntarism in support of empiricism. It uses van Fraassen's work to motivate a concern with Friedman's neo-Kantian reading of Reichenbach. We are, finally, left with questions about the status and content of the account of the epistemic subject available to an epistemological voluntarist. /// (...) [Thomas E. Uebel] This response considers the question whether empiricists are condemned to silence about the epistemic agency their theories attribute or presuppose. It is argued that, unlike Reichenbach or Carnap, Neurath allowed for and indeed provided specifications of the role of epistemic agency in scientific inquiry. If this is correct, it underscores once more the need to distinguish between the various strands of logical positivism which show different strengths and weaknesses. (shrink)
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.
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. (shrink)
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 of reference for (...) legal experience. A recent essay by Professor Antonio Baldassarre, President Emeritus of the Constitutional Italian Court, about the “misery of legal positivism” is a good expression of this view. In this article, the ideas outlined by Baldassarre are examined and criticized. The paper also tries to defend a version of legal positivism, which has both a conceptual and prescriptive meaning, relating to decisions made on the basis of rules. This view is based on the two correlated concepts of primary formalism and secondary formalism of “competence and procedure.”. (shrink)
The purpose of this paper is to undermine Paul Feyerabend's claim, which is crucial to the success of his analysis of Positivism, that the Pragmatic Theory of Observation was first developed by Rudolf Carnap in his early discussions of protocol sentences. Rather, it will be argued that Carnap's conception of protocols was founded on considerations drawn from his conception of language so that Carnap's reasons for endorsing certain aspects of the Pragmatic Theory are nothing like Feyerabend's. Moreover, Carnap never (...) approved the final conclusion of the Pragmatic Theory, that observational reports are distinguished by their causes. These historical conclusions provide the basis for arguing that, despite Feyerabend's critique, Carnap's later views (in "The Methodological Character of Theoretical Concepts") clearly countenance theoretical influences on observational statements. (shrink)
Do the terms “logical positivism” and “logical empiricism” mark a philosophically real and significant distinction? There is, of course, no doubt that the first term designates the group of philosophers known as the Vienna Circle, headed by Moritz Schlick and including Rudolf Carnap, Herbert Feigl, Philipp Frank, Hans Hahn, Otto Neurath, Friedrich Waismann and others. What is debatable, however, is whether the name “logical positivism” correctly distinguishes their doctrines from related ones called “logical empiricism” that emerged from the (...) Berlin Society for Scientific Philosophy around Hans Reichenbach which included Walter Dubislav, Kurt Grelling, Kurt Lewin and a young Carl Gustav Hempel.1 The .. (shrink)
The work of W.V.O. Quine is often held to folIow the logical positivism of the Vienna Circle in broad outline, but to diverge from it in crucial particulars. On the basis of recent reevaluations of the latter, I argue that the philosophical distance between Quine and the Vienna Circle is less than ordinarily thought, or, most importantly, than Quine himself admits.
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)
It is argued that the debate over the positivist theory of historical explanation has made only a limited contribution to our understanding of how historians should defend the explanations they propose importantly because both positivists and their critics tacitly accepted two assumptions. The first assumption is that if the positivist analysis of historical explanation is correct, then historians ought to attempt to defend covering laws for each of the explanations they propose. The second is that unless a historian can justify (...) an explanation that he proposes, then his preference for that explanation is not rationally defensible. It is argued that the first assumption is false and that if in order to justify an explanation, one must justify a covering law for it, then the second assumption is also false. A program for investigating how historians should defend their explanations is suggested. (shrink)
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 law and (...) human agency. This not only opens up a new engagement between Raz and Fuller that was far from exhausted within debates about law and morality, but also reveals tensions between Raz’s analysis of the rule of law and his analysis of legal authority that proponents of Raz’s legal positivism need to address. (shrink)
