Oxford University Press (1992)
| Abstract |
Is the nature of law to be formal procedure or to embody substantive value? This work deals with the traditional conflict in legal philosophy between positivistic and anti-positivistic theories of law. It examines the conflict with respect to seven central issues in legal philosophy--law as a reason for action, law and authority, the internal point of view to law, the acceptance of law, discretion and principle, interpretation and semantics, and law and the common good. This work argues that although this conflict cannot be resolved, the true nature of law is revealed--not obscured--by this perennial situation.
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| Keywords | Legal positivism Natural law Law Philosophy |
| Categories | (categorize this paper) |
| Buy this book | Amazon page |
| Call number | K331.S55 1992 |
| ISBN(s) | 0198257198 9780198257196 |
| DOI | 10.1086/293689 |
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Chapters BETA
Introduction
This chapter first sets out the purpose of the book, which is to present in a different light the nature and achievements of traditional legal theory. If we are able to gain a better view of what is happening in traditional analytical jurisprudence, then we shall just by the completion of ... see more
Sophisticated Positivism
This chapter lays out sophisticated positivism as the development of lines of thought which began in simple positivism. Some of the claims of sophisticated positivism are that: (1) the law is a system of exclusionary reasons for action – it is not simply a system of good first-order reason... see more
Reasons for Action
The thought behind Raz's notion of ‘exclusionary reason’ in relation to law can be put more generally. Instrumental rationality represents practical reasoning as homogeneous. One ought always, all things considered, to do whatever one ought to do on the balance of reasons. Any reason is in... see more
Law and Authority
This chapter argues that to account properly for the nature of law, one must see that the law by nature ‘claims authority’ and does not merely ‘exercise sheer power’, because by nature law appeals specifically to our sense that serving the ends of justice is genuinely a reason for action, ... see more
The Point of View of Legal Theory
This chapter argues that legal theory not only need not, but also should not, be committed to the availability of the external point of view for itself. Sophisticated positivism, by showing us clearly why it is a mistake to take the external point of view of the ‘bad man’ as dispositive of... see more
The Acceptance of Law
Sophisticated positivism argued two main theses about the acceptance of law. The first is that the minimum necessary and sufficient conditions for the existence of a legal system are satisfied in the case where no one has the internal point of view towards the primary rules of the system, ... see more
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Citations of this work BETA
Practical‐Political Jurisprudence and the Dual Nature of Law.Sarah Nason - 2013 - Ratio Juris 26 (3):430-455.
Strictly Institutionalized Sources of Law: Some Further Thoughts.Roger A. Shiner - 2007 - Ratio Juris 20 (2):310-324.
Continental Normativism and Its British Counterpart: How Different Are They?Stanley L. Paulson - 1993 - Ratio Juris 6 (3):227-244.
Delegation as a Source of Law.Dale Dewhurst, David Hampton & Roger A. Shiner - 2003 - Ratio Juris 16 (1):56-88.
View all 7 citations / Add more citations
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