Legal positivism and the separation of existence and validity

Ratio Juris 23 (1):22-40 (2010)
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.
Keywords No keywords specified (fix it)
Categories (categorize this paper)
DOI 10.1111/j.1467-9337.2009.00442.x
 Save to my reading list
Follow the author(s)
My bibliography
Export citation
Find it on Scholar
Edit this record
Mark as duplicate
Revision history Request removal from index
Download options
PhilPapers Archive

Upload a copy of this paper     Check publisher's policy on self-archival     Papers currently archived: 24,411
External links
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
Through your library
References found in this work BETA

View all 13 references / Add more references

Citations of this work BETA

Add more citations

Similar books and articles

Monthly downloads

Added to index


Total downloads

54 ( #90,316 of 1,924,715 )

Recent downloads (6 months)

3 ( #254,650 of 1,924,715 )

How can I increase my downloads?

My notes
Sign in to use this feature

Start a new thread
There  are no threads in this forum
Nothing in this forum yet.