A POSITIVIST ROUTE FOR EXPLAINING HOW FACTS MAKE LAW

This book challenges the view that legal positivism should be reduced to a conceptual analysis of legal validity. Instead, Elena Namli reclaims legal positivism as a theory of the relationship between law, morality, and politics. Presenting novel interpretations of the classical works of Herbert L. A. Hart, Joseph Raz, and Jürgen Habermas, Namli frames legal positivism as a theory that makes possible a moral and political critique of valid law. Moreover, this book defends the dialectical relationship between law, politics, and morality by combining a positivist approach to legal validity with a constructivist ethical theory which strengthens the critical potential of legal positivism. Legally valid norms may not always be morally justified, but understanding the moral quality of legal regulations is essential for comprehending modern law.

Previous articleNext article No AccessNegative and Positive PositivismJules L. ColemanJules L. Coleman Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Journal of Legal Studies Volume 11, Number 1Jan., 1982 Sponsored by The University of Chicago Law School Article DOIhttps://doi.org/10.1086/467696 Views: 168Total views on this site Citations: 53Citations are reported from Crossref Copyright 1982 The University of ChicagoPDF download Crossref reports the following articles citing this article:Dimitrios Kyritsis “Semantic Sting” Controversy, (Dec 2021): 1–6.https://doi.org/10.1007/978-94-007-6730-0_212-1Yezid Carrillo de la Rosa, Joe Caballero Hernández Positivismo jurídico, Prolegómenos 24, no.4848 (Dec 2021): 13–22.https://doi.org/10.18359/prole.4168Jeffrey Kaplan In Defense of Hart’s Supposedly Refuted Theory of Rules, Ratio Juris 34, no.44 (Feb 2022): 331–355.https://doi.org/10.1111/raju.12331Dan Priel Bentham’s Public Utilitarianism and Its Jurisprudential Significance, Ratio Juris 34, no.44 (Feb 2022): 415–437.https://doi.org/10.1111/raju.12334Sari Kisilevsky Hard Cases and Legal Validity: The Internal Moral Significance of Law, (Sep 2021): 197–223.https://doi.org/10.1007/978-3-030-78803-2_12Samuele Chilovi Grounding-based formulations of legal positivism, Philosophical Studies 177, no.1111 (Nov 2019): 3283–3302.https://doi.org/10.1007/s11098-019-01370-5Kenneth M. Ehrenberg Exclusive Legal Positivism, (May 2020): 1–4.https://doi.org/10.1007/978-94-007-6730-0_111-2Yahya Berkol GÜLGEÇ HUKUK TEORİLERİNDE YARGI VE HUKUK UYGULAYICISI FETİŞİZMİ, Dokuz Eylül Üniversitesi Hukuk Fakültesi Dergisi (Dec 2019).https://doi.org/10.33717/deuhfd.644280Rodrigo E. Sánchez Brigido Cooperative Conventions, Rules of Recognition and Institutional Practices, (Dec 2018): 109–126.https://doi.org/10.1007/978-3-030-03571-6_7Federico José Arena Conventionalism Unchained and Sceptical. A Defence of a Quasi-Realist Account of Legal Statements Against Dworkin’s Criticisms, (Dec 2018): 147–178.https://doi.org/10.1007/978-3-030-03571-6_9Dennis Patterson Theoretical Disagreement, Legal Positivism, and Interpretation, Ratio Juris 31, no.33 (Sep 2018): 260–275.https://doi.org/10.1111/raju.12216Stephan Kirste Concept and Validity of Law, (Dec 2018): 47–73.https://doi.org/10.1007/978-3-319-77522-7_3Dennis Patterson Theoretical Disagreement, Legal Positivism, and Interpretation, SSRN Electronic Journal (Jan 2018).https://doi.org/10.2139/ssrn.3247024Valeria Giordano Constitutionalism and Value-Free Method: Kelsen’s Legacy in Contemporary Challenges, (May 2017): 99–118.https://doi.org/10.1007/978-3-319-51817-6_6Federico José Arena Legal Conventionalism, (Sep 2017): 1–8.https://doi.org/10.1007/978-94-007-6730-0_101-1Tom Campbell Law and Morality: An Analytical Perspective, (Jan 2015): 483–488.https://doi.org/10.1016/B978-0-08-097086-8.63044-1Brian Z. Tamanaha Legal Positivism, (Jan 2015): 762–766.https://doi.org/10.1016/B978-0-08-097086-8.86074-2Adam Dyrda , Archiwum Filozofii Prawa i Filozofii Społecznej ( 2015): 14.https://doi.org/10.36280/AFPiFS.2015.1.14Giorgio Pino Positivism, Legal Validity, and the Separation of Law and Morals, Ratio Juris 27, no.22 (May 2014): 190–217.https://doi.org/10.1111/raju.12044Randall S. Firestone Why the Bible Cannot and Should Not Be Taken Literally, Open Journal of Philosophy 04, no.0303 (Jan 2014): 303–318.https://doi.org/10.4236/ojpp.2014.43035Hugo Hardy Bentham, père du positivisme juridique?, Revue d’études benthamiennes , no.1111 (Oct 2012).https://doi.org/10.4000/etudes-benthamiennes.630Urszula Anna Kosielińska-Grabowska The Rule of Recognition – a Remedy for the External Uncertainty of Law?, Archiwum Filozofii Prawa i Filozofii Społecznej (Mar 2012): 23–33.https://doi.org/10.36280/AFPiFS.2012.1.23Arthur Ripstein Self-certification and the Moral Aims of the Law, Canadian Journal of Law & Jurisprudence 25, no.11 (Jul 2015): 201–217.https://doi.org/10.1017/S0841820900005415Giorgio Pino Positivism, Legal Validity, and the Separation of Law and Morals, SSRN Electronic Journal (Jan 2012).https://doi.org/10.2139/ssrn.2205561SVEIN ENG Lost in the System or Lost in Translation? The Exchanges between Hart and Ross*, Ratio Juris 24, no.22 (May 2011): 194–246.https://doi.org/10.1111/j.1467-9337.2011.00482.xAnthony R. Reeves Judicial Practical Reason: Judges in Morally Imperfect Legal Orders, Law and Philosophy 30, no.33 (Mar 2011): 319–352.https://doi.org/10.1007/s10982-011-9098-xGerald J. Postema The Incorporation Debate, (Jun 2011): 457–482.https://doi.org/10.1007/978-90-481-8960-1_10Gerald J. Postema Conventions and The Foundations of Law, (Jun 2011): 483–545.https://doi.org/10.1007/978-90-481-8960-1_11Gerald J. Postema Positivism Challenged: Interpretation, Integrity, and Law, (Jun 2011): 401–456.https://doi.org/10.1007/978-90-481-8960-1_9Subrata Kumar Kundu Re-Visiting the Viability of the Rule of Recognition and the Basic Norm in Modern Legal Context, SSRN Electronic Journal (Jan 2011).https://doi.org/10.2139/ssrn.1866863MATTHEW GRELLETTE Legal Positivism and the Separation of Existence and Validity, Ratio Juris 23, no.11 (Mar 2010): 22–40.https://doi.org/10.1111/j.1467-9337.2009.00442.xJules L. Coleman, Brian Leiter Legal Positivism, (Jan 2010): 228–248.https://doi.org/10.1002/9781444320114.ch14Ken Kress Coherence, (Jan 2010): 521–538.https://doi.org/10.1002/9781444320114.ch36JULES L. COLEMAN Beyond Inclusive Legal Positivism*, Ratio Juris 22, no.33 (Sep 2009): 359–394.https://doi.org/10.1111/j.1467-9337.2009.00430.xGIOVANNI SARTOR Legality Policies and Theories of Legality: From Bananas to Radbruch's Formula*, Ratio Juris 22, no.22 (Jun 2009): 218–243.https://doi.org/10.1111/j.1467-9337.2009.00422.xMICHAEL GIUDICE The Regular Practice of Morality in Law, Ratio Juris 21, no.11 (Mar 2008): 94–106.https://doi.org/10.1111/j.1467-9337.2007.00381.xMark C. Murphy Natural Law Theory, (Feb 2008): 15–28.https://doi.org/10.1002/9780470690116.ch1Brian H. Bix Legal Positivism, (Feb 2008): 29–49.https://doi.org/10.1002/9780470690116.ch2Stefano Bertea Towards A New Paradigm of Legal Certainty, Legisprudence 2, no.11 (May 2015): 25–45.https://doi.org/10.1080/17521467.2008.11424672Yu Xingzhong Formalism and Commitment in Hong Kong’s Constitutional Development, (Jan 2007): 183–197.https://doi.org/10.1057/9780230610361_10M. N. S. Sellers The Actual Validity of Law, (Jan 2003): 56–61.https://doi.org/10.1057/9780230513402_7T. Campbell Law and Morality: An Analytic Perspective, (Jan 2001): 8469–8475.https://doi.org/10.1016/B0-08-043076-7/01050-0B.Z. Tamanaha Legal Positivism, (Jan 2001): 8654–8660.https://doi.org/10.1016/B0-08-043076-7/02922-3Jules L. Coleman Incorporationism, Conventionality, and the Practical Difference Thesis, Legal Theory 4, no.44 (Feb 2009): 381–425.https://doi.org/10.1017/S1352325200001099Philip Soper Two Puzzles from the Postscript, Legal Theory 4, no.33 (Feb 2009): 359–380.https://doi.org/10.1017/S1352325200001063Alan R. Madry, Joel F. Richeimer The Possibility of Normative Jurisprudence: A Response to Brian Leiter, Legal Theory 4, no.22 (Feb 2009): 207–239.https://doi.org/10.1017/S1352325200000987Brian Bix Conceptual Questions and Jurisprudence, Legal Theory 1, no.44 (Feb 2009): 465–479.https://doi.org/10.1017/S1352325200000215Mark J. Osiel Dialogue with Dictators: Judicial Resistance in Argentina and Brazil, Law & Social Inquiry 20, no.0202 (Dec 2018): 481–560.https://doi.org/10.1111/j.1747-4469.1995.tb01069.xBrenda M. Baker Empire-Building, Dialogue 32, no.11 (Apr 2010): 149–162.https://doi.org/10.1017/S0012217300015055Charles Silver Public Choice and Judicial Review, Law <html_ent glyph="@amp;" ascii="&"/> Social Inquiry 18, no.11 (Jan 1993): 165–195.https://doi.org/10.1111/j.1747-4469.1993.tb00651.xBernd Gräfrath Ausgewählte Literatur, (Jan 1991): 199–212.https://doi.org/10.1007/978-3-476-03347-5_10 Ken Kress The Interpretive Turn, Ethics 97, no.44 (Oct 2015): 834–860.https://doi.org/10.1086/292897Yechiel Michael Barilan Jewish Bioethics, vol. 3 (Dec 2013).https://doi.org/10.1017/CBO9781139175890

The degree of dissonance in public opinion as regards the efficiency, or lack thereof, of the present administration has been growing by the day. From the most magnanimous of issues, like pandemic response, to the minutest, such as how the President has constantly picked up petty quarrels with the opposition by cursing them on nationally televised appearances, the general public has been at the brink of utter discord on how to accept the actions (even inactions) of the sitting administration.&#x0D; This divide in public opinion has only been heightened with the decision of Congress on 10 July 2020, after months of exhaustive and comprehensive hearings, to deny the grant of franchise to the multi-media and broadcast giant, ABSCBN, at a time when the surge of the pandemic is climbing at its summit. On the one hand, there are those who believe that this is simply an assertion of the supremacy of Philippine legal system in application and interpretation, given the perceived violations of ABS-CBN of some domestic laws and even the restrictions of their previous franchise; on the other hand, some construed this is nothing more than a stubborn flexing of the administration’s institutional muscles to bring down its opponents and suppress views that are adversarial to the government.&#x0D; And while ideally, the harmonization of both law and morality (or justice) ought to be the goal of every State, the differences in the interpretation of the concept of morality, as well as diversity in culture and tradition. This dilemma between law and justice, legality and morality, has been the subject of a long line of philosophical and sociological debates, as well as an amusing source of confusion in the varying (sometimes even conflicting) decisions of the Philippine courts in the interpretation and application of laws. Ultimately, the question boils down into the legitimacy of laws. &#x0D; For this purpose, the researcher will focus on legal positivism from the perspective of John Austin to address the aforementioned dilemma.&#x0D; References&#x0D; Printed Materials&#x0D; Agabin, Pacifico. Mestizo: The Story of the Philippine Legal System. Diliman, Quezon City: Universityof the Philippines, 2011.&#x0D; Austin, John. The Province of Jurisprudence Determined. London, UK: John Edward Taylor, 1861.&#x0D; Bix, Brian. Natural Law Theory, A Companion to Philosophy of Law and Legal Theory, 2nd edition.Oxford, UK: Blackwell Publishing Ltd., 2010.&#x0D; Coleman, Jules and Leiter, Brian. Legal Positivism, A Companion to Philosophy of Law and Legal Theory, 2nd edition. Oxford, UK: Blackwell Publishing Ltd., 2010.&#x0D; Jones, W.T. A History of Western Philosophy: Hobbes to Hume, 2nd edition. San Diego, California: Harcourt Brace Jovanovich, Inc., 1969.&#x0D; Ruggiero, Vincent Ryan. Thinking Critically About Ethical Issues, 8th edition. New York, USA: The McGraw-Hill Companies, Inc., 2012.&#x0D; Internet Sources&#x0D; Chan Robles Virtual Law Library - www.chanrobles.com&#x0D; Internet Encyclopedia of Philosophy - www.iep.utm.edu&#x0D; Stanford Encyclopedia of Philosophy - www.plato.stanford.edu

How to Hold the Social Fact Thesis- A Reply to Greenberg and Toh

Abstract. The dispute between Legal Positivists (eg, Hart) and Natural Lawyers (e.g., Finnis) concerns the existence or otherwise of a necessary (conceptual) connection between law and morality. Legal Positivists such as Hart deny this connection and assert the merely contingent relationship of law and morals. However, it can be demonstrated that implicit in the valid sociological method of concept formation of post‐Austinian Positivists are interpretative or ideal‐typical models of the practical rationality of the legal enterprise which are not, and cannot possibly be, value‐neutral. With particular attention to the work of John Finnis and his incorporation of Weberian and Aristotelian methodological principles, this paper exposes, if not the truth of Natural Law Theory, the impossibility of Legal Positivism.

Why Legal Positivism?

Conventional wisdom holds that there is a connection between (a) the jurisprudential commitment to legal positivism expressed in Erie R.R. v. Tompkins, and (b) Erie's holding that the common law powers of federal courts exercised in Swift v. Tyson are unconstitutional. In this essay we analyze and challenge this conventional wisdom. The conventional wisdom is sometimes expressed as an historical connection between beliefs about positivism and Erie's overruling of Swift. We think this historical claim lacks affirmative support, overlooks significant evidence to the contrary, and misleadingly views Erie's pre-history through the distorting lens of Holmes' dissents. Other times the conventional wisdom is expressed as a conceptual or normative connection between the truth of positivism and Erie's holding. We think these contentions too are wrong. Our claim here is one of irrelevance: Erie's commitment to legal positivism is conceptually and normatively independent of its constitutional holding. Legal positivism is a general theory about the nature of law. Even if true, it has no implications for the allocation of authority between the state and federal governments. This argument shows that Erie is not a decision about the nature of law, but rather reflects a particular time-bound set of constitutional and policy priorities. It helps to explain why some recent philosophical attacks on Erie are groundless. It demonstrates that the many outstanding mysteries about the practical implications of Erie's holding cannot, as many think, be resolved by recourse to legal positivism. And it presents a cautionary lesson about the dangers that inhere in attempting to derive constitutional conclusions from theories about law.

Socrates´ thought of justice and obedience to laws is motivated by a will to avoid the destructive effects of Sophistic criticisms and theories of laws. He thus requires–against theories of natural law–an almost absolute obedience to the law, as far as this law respects the legal system of the city. But, against legal positivism, Socrates would not admit that a law is just simply because it is a law: he is looking for the true Just. However, as often in Socratic philosophy, Socrates cannot accept that two equally justified and legitimate rights or moral values conflict.

The importance of the theory of state and law as a basic fundamental legal science is generally recognized in European jurisprudence. This is especially true for the countries of the Romano-German legal family. The article shows the points of view of famous German jurists, philosophers, sociologists on topical issues of the theory of state and law. It is important to study the basic theoretical and legal views of representatives of the German law school, since they, along with scientists from other countries, have made a significant contribution to the development of theoretical and legal science. The purpose of the article is to draw the attention of the Russian legal community to the works of German lawyers that have not been fully translated into Russian. The article begins with a description of the problems of methodology and justification of the chosen comparative legal research method. In relation to the theory of the state, the issues of global constitutionalism, problems of state sovereignty, changes in the role of the state in modern society, the emergence of new functions for the state, the theory of the liberal state and its criticism are considered. The problems of the theory of law raised in the article relate to the issues of the system and self-production of law, legal interpretation and non-legal interpretations, the limits of legal regulation, legal positivism, concretization in law, judicial lawmaking, the views of the Frankfurt School. Attention is paid to the problem of the value justification of law and sociocultural factors in law, the relationship between law and culture. The article may be of interest to specialists in the field of theory of state and law and comparative law.

The most influential theory of law in current analytic legal philosophy is legal positivism, which generally understands law to be a kind of institution. The most influential theory of institutions in current analytic social philosophy is that of John Searle. One would hope that the two theories are compatible, and in many ways they certainly are. But one incompatibility that still needs ironing out involves the relation of the social rule that undergirds the validity of any legal system (H.L.A. Hart's rule of recognition) to Searle's notion of codification: the idea that institutions need official declarations of their constitutive rules in order to enjoy the full benefits of institutions. The incompatibility arises from the fact that, in order to do its institutional work, the basic validity rule must be codified in Searle's sense—yet, given the particular role it has in legal positivism, it may be impossible to codify in the Searlean sense. In this paper I develop the incompatibility in detail, consider and reject consigning the basic validity rule to Searle's “Background” capacities that support institutional facts, and conclude that the best route to eliminating it while doing a minimum of damage to the two theories is to make a slight emendation to Searle's theory of institutions.

Sionaidh Douglas-Scott's book, Law after Modernity, outlines a sophisticated theory of legal pluralism. The book makes extensive use of artworks and other cultural images to draw out law's social meanings. I explore Douglas-Scott's comments on the relationship between art and law through reference to Michèle Le Doeuff's work on the philosophical imaginary. I then address her views on legal pluralism. Douglas-Scott argues that legal positivism's failure to adequately capture the complexity of contemporary legal orders makes legal pluralism preferable as a descriptive theory of law. However, she distances herself from claims that legal pluralism also offers a normatively desirable view of law, arguing that it needs to be supplemented by a theory of critical legal justice. Douglas-Scott shows a commendable awareness of legal pluralism's descriptive insights and its normative limits, but her account of critical legal justice remains highly tentative. What, then, lies in the unmapped terrain beyond the limits of legal pluralism? I suggest the answer lies in overcoming the central assumption shared by both legal positivism and legal pluralism: the idea of law as a product of human authority.

Mark Greenberg famously argued that conventional legal theories are based on an important shared error: that legislation directly contributes to the content of law. Greenberg points out that there is frequently a divergence between the semantic content of what lawmakers enact and any resulting change in the content of law. Greenberg used this observation and argument as the basis for rejecting conventional legal theories, in particular, legal positivism, and constructing his alternative approach, "the Moral Impact Theory of Law." While Greenberg is correct in observing a divergence between legislative communication and legal content, he is wrong in his diagnosis of the cause of this divergence. There is a simpler explanation for the divergence, and one that does not require rejecting (or, for that matter, accepting) legal positivism. The divergence between legal content and the communicating content of individual acts of legislation can be understood by focusing on law as a form of practical reasoning. The idea that practical reasoning is central to law is hardly new: it is an integral part of the legal positivist theory of Joseph Raz and the natural law theory of John Finnis, and can arguably be traced back to Thomas Aquinas, and perhaps beyond. This Chapter will revisit the importance of understanding law in terms of practical reasoning, and show how this focus can explain the divergence that troubled Greenberg, without requiring recourse to his Moral Impact Theory or any other substantial revisions to conventional jurisprudential thought.

Legal Theory Lexicon 065: The Nature of Law

Legal Teleology seeks to embrace and to ground the most plausible tenets of both legal positivism and natural law theory. It is compatible with the positivist view that law consists at root in a social practice of a certain kind. Yet it also can accommodate at least some claims about the relation between law and morality that are advocated by opponents of positivism. Most important, it argues that law is “robustly normative”—roughly, law is a source of genuine reasons. Standard forms of positivism cannot account for this thesis, but, arguably, the central doctrines of positivism are compatible with it. Legal Teleology is an account of the normativity of law that is supported by “pluralist-teleology,” a naturalist account of normativity that has been proposed elsewhere (Copp 2009). Legal Teleology sees the law as having a purpose, and it says that law is defective insofar as it does not further that purpose. It agrees that jurists can sometimes help law better to serve its purpose when they invoke moral principles in interpreting law. Legal Teleology represents a kind of intermarriage between legal positivism and natural law theory.

This chapter attempts to establish the thesis that analytical legal philosophy is not an exercise in conceptual analysis. While conceptual analysis may have played some role in H. L. A. Hart's jurisprudence, it was rather tangential to the main project of his theory. Hart's main objective in The Concept of Law was not essentially different from that of Austin, namely, to provide a reductionist theory of law. The main purpose of Hart's theory was to offer an explanation of law in terms of something more foundational in nature, that is, in terms of social facts, which, in turn, can be explained by reference to people's actual conduct, beliefs, and attitudes. Hart's objection to Austin's reductionism was not to the idea of reduction but to the particular building blocks that Austin used in articulating his theory. The chapter argues that the main methodological thrust of legal positivism is reductionism, not conceptual analysis. And the main objections to legal positivism are best seen as a denial of the possibility of such a reduction.