Legal Positivism

The 54th volume of Current Legal Problems features contributions from leading academics on current issues in comparative law, legal theory, environmental law, restitution, IP law, family law, world trade, and international law.

This article proposes an interpretation of the status of the Grundnorm in Hans Kelsen’s legal theory which addresses the broader philosophical problem of the ultimate foundation of normativity. It begins by reviewing the main objections that have been raised against Kelsen’s theory, pointing out that most of these can be met by a ‘transcendental’ interpretation of the Grundnorm as a condition of possibility for legal cognition. It then argues that in order to solve the problem of the ultimate foundation for (...) legal validity it is also necessary to read the Grundnorm in light of the parallel category of ‘nomo-dynamicity’, which Kelsen introduced in all his legal writings beginning with the Pure Theory of Law of 1933. This yields a conception of legal validity as an ‘essentially temporal’ category, from the point of view of which the problem of ultimate foundations cannot emerge because the beginning is by definition not situated conceptually within time. The broader conclusion is therefore that overcoming the problem of the ultimate foundation of normativity requires abandoning the theologico-political assumption that valid norms are posited through a sovereign gesture analogous to that through which God is supposed to have created the universe ex nihilo. Construing normativity as ‘essentially temporal’ implies that the search for ultimate foundations must run into a category that is entirely foreign to political theology but well known to phenomenology: that of an ‘always-already’. (shrink)

Este artículo quiere ser una reflexión sobre el derecho a la educación aunque no pretende agotar, ni mucho menos, todos los aspectos que este derecho humano fundamental conlleva. Quiere explicitar que cuando hablamos de derecho a la educación y de situaciones en que este derecho se vulnera, estamos refiriéndonos a algo que afecta directamente la dignidad de las personas.

The article presents a vision of the challenges to which contemporary legal positivism has to respond. The constitutionalisation that governs current legal systems offers a new framework in which to develop the classic controversy between positivism and iusnaturalism. This article analyses the different positivist proposals put before the reality of the constitutional state as well as its replies to the criticisms of those who consider it anoutdated theory of little use. Finally, it will also deal with the relationship between positivism (...) and legal realism. This relationship is increasingly close due to the uncertainty that characterizes no few legislative and constitutional clauses. (shrink)

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 law (...) and morality, and the normative argument alone fails to address the nature of law, the two arguments together support a nonpositivistic concept of law, toppling legal positivism qua comprehensive theory of law. (shrink)

In his book Legality Scott J Shapiro presents a large-scale and sophisticated attempt to defend legal positivism in its most outspoken form, namely exclusive legal positivism. This, however, does not mean that morality plays no role in Shapiro’s analysis of the nature of law. On the contrary, he connects law with morality in myriad ways. This gives rise to the question of whether Shapiro’s theory of the nature of law is truly positivistic. In the article I argue that Shapiro’s theory (...) is, first, in crucial respects non-positivistic, and, second, in certain other respects indeed positivistic but in need of being converted into a non-positivistic theory. (shrink)

Hans Kelsen refused to develop a democratic theory of the basic norm. Given that he expounded a strong distinction between law and politics as two separate scientific disciplines he consistently argued against any attempt to politicize legal science and corrupt its object of cognition. As a result, there has been very little discussion of the basic norm in relation to his democratic theory. This article attempts to fill this gap by tracing the relationship between the basic norm and democracy in (...) Kelsen’s legal and political writings. More precisely, it maps Kelsen’s seminal distinction between autonomy and heteronomy onto his reflections on constitutional making and probes the anti-democratic implications of his theory of the basic norm as they undermine the normative foundations of democratic theory. The article concludes by addressing the question of whether it is possible to articulate a theory of the democratic ground norm, of democratic foundings with a normative content, by proposing the idea of an immanent, performative basic norm as the source of validity of a democratic constitutional order. (shrink)

The field of socio-legal research has encountered three fundamental challenges over the last three decades – it has been criticized for paying insufficient attention to legal doctrine, for failing to develop a sound theoretical foundation and for not keeping pace with the effects of the increasing globalization and internationalization of law, state and society. This book examines these three challenges from a methodological standpoint. It addresses the first two by demonstrating that legal sociology has much to say about justice as (...) a kind of social experience and has always engaged theoretically with forms of normativity, albeit on its own empirical terms rather than on legal theory’s analytical terms. The book then explores the third challenge, a result of the changing nature of society, by highlighting the move from the industrial relations of early modernity to the post-industrial conditions of late modernity, an age dominated by information technology. It poses the question whether socio-legal research has sufficiently reassessed its own theoretical premises regarding the relationship between law, state and society, so as to grasp the new social and cultural forms of organization specific to the twenty-first century’s global societies. (shrink)

An interpretation of the contemporary debate between natural law theory and legal positivism is presented which takes hermeneutics, i.e., the general theory of interpretation, to be its central organizing theme. Major portions of the thesis are devoted to analyzing the role which hermeneutics plays in the legal theories of H. L. A. Hart, Lon Fuller, and Ronald Dworkin. Hart's version of legal positivism is shown to be closely analogous to "objectivistic hermeneutics", a view developed in the work of Wilhelm Dilthey (...) and Max Weber. Similarly, it is argued that the contemporary version of natural law theory which is instantiated in the works of Lon Fuller and Ronald Dworkin is analogous to Hans-Georg Gadamer's view, which he calls "philosophic hermeneutics." ;Unlike earlier versions of legal positivism, Hart's legal theory takes rules to be elemental. His analysis of rules includes a component, "the internal aspect of rules", which reflects: Hart's rejection of the reductionism which is characteristic of legal realism and Austin's version of legal positivism, and his belief that this component can be fully captured by an objective and value-free theoretical account. Hart's acceptance of objectivistic hermeneutics is consistent with legal positivism's commitment to the strict separation of law and morality because according to both views it is possible to: sharply separate facts from values in the human sciences, and provide an objective and value-free theoretical account of law. By contrast, those who accept philosophic hermeneutics and those who defend a contemporary version of natural law theory are skeptical of these two claims. Since the most prominent contemporary representatives of both natural law theory and legal positivism appeal to hermeneutics in one form or another, it follows that one cannot obtain an adequate conception of contemporary jurisprudence until one appreciates that the philosophical and methodological issues which distinguish different versions of hermeneutic theory have their counterparts within contemporary legal theory. (shrink)