Exclusive Legal Positivism Research Articles

Inclusive legal positivism: Basic arguments

The relevance of the topic of this paper is due to the insufficient study of the problems of inclusive legal positivism in the modern philosophy of law. The problem of substantiating the thesis of the inclusion of morality in law on the basis of rational argumentation of scientists and legal practice data considered in the paper allows an innovative analysis of basic legal concepts. The subject of the research is to analyze the methods of moral, ethical and legal argumentation in the works of representatives of inclusive legal positivism. The purpose of the work is to theoretically reconstruct the essence of the debate between inclusive and exclusive legal positivism. The novelty of the topic is due to the lack of studies in the educational and scientific literature on the specifics of the argumentation of inclusive legal positivism, set out in the scientific works of Will Waluchow and Kenneth Himma, the need to rethink traditional ideas about the theory of legal positivism. The research methods used in the paper is the methods characteristic of analytical jurisprudence, including those related to the use of methods of logical and linguistic analysis, as well as special legal methods (formal legal method of interpretation of regulatory prescriptions). The main conclusions of the paper are to reveal the key arguments of the concept of inclusive legal positivism. It is proved that from the point of view of this concept, the law has moral grounds, and judges in some cases use moral reasoning when making court decisions.

Understanding the Rule of Law in Joseph Raz's Positivist Doctrine

The subject of the present paper is the interpretation of the doctrine of the rule of law in the teaching of the leading representative of exclusive legal positivism, Joseph Raz (1939–2022). The importance of analyzing the doctrine of the rule of law from this perspective lies in the fact that such a study is able to identify the fundamental ideas of the positivist understanding of the law and the rule of law from the standpoint of the post-Hartian stage of its evolution. The article reveals two main approaches to understanding the rule of law in modern British legal literature: material and formal concepts. Raz's views on the rule of law are compared with the classical ideas of Albert Venn Dicey, the principles of the "inner morality" of law by Lon L. Fuller, and the position of Friedrich August von Hayek. The scientific novelty of the article is that, for the first time, an attempt has been made to reveal the differences between formal and material concepts of the rule of law in British jurisprudence in Russian legal literature. Raz's arguments about the nature and goals of the rule of law are not generally accepted in English constitutional doctrine but are quite indicative of the position of post-Hartian legal positivism on the problem of building a stable and predictable legal order. On the one hand, the principles of the rule of law revealed in Raz's teachings relate exclusively to the legal form, which is generally characteristic of the neo-positivism of the twentieth century. On the other hand, sociological attitudes can also be distinguished in Raz's teaching, which allows us to assert that post-Hartian legal positivism combines a number of ideas of "classical" and "sociological" positivism.

Understanding the Rule of Law in the Positivist Doctrine of J. Times

The subject of the present paper is the interpretation of the doctrine of the rule of law in the teaching of the leading representative of exclusive legal positivism, Joseph Raz (1939 - 2022). The importance of analysing the doctrine of the rule of law in this perspective lies in the fact that such a study is able to identify the fundamental ideas of the positivist understanding of law and the rule of law from the standpoint of the post-Hartian stage of its evolution. The article reveals two main approaches to understanding the rule of law in modern British legal literature - material and formal concepts. Raz's views on the rule of law are compared with the classical ideas of A.V. Dicey, the principles of the "inner morality" of law by L.L. Fuller and the position of F.A. von Hayek. The scientific novelty of the article is that for the first time in the Russian legal literature an attempt has been made to reveal the differences between formal and material concepts of the rule of law in British jurisprudence. Raz's arguments about the nature and goals of the rule of law are not generally accepted in English constituional doctrine, but are quite indicative of the position of post-Hartian legal positivism on the problem of building a stable and predictable legal order. On the one hand, the principles of the rule of law revealed in the teachings of Raz relate exclusively to the legal form, which is generally characteristic of the neo-positivism of the XX century. On the other hand, sociological attitudes can also be distinguished in Raz's teaching, which allows to assert that post-Hartian legal positivism combines a number of ideas of "classical" and "sociological" positivism.

Realism and Positivism

ABSTRACT Several scholars advance the ‘LR-LP thesis’: the claim that American Legal Realism presupposes Legal Positivism. Brian Leiter and Frederick Schauer, prominent scholars of Realism, delimit that thesis to a Razian version of Exclusive Legal Positivism (‘ELP’). This article nevertheless argues that Leiter and Schauer’s respective accounts of Legal Realism are difficult to square with Razian ELP. Indeed, the Realist hypotheses about alternative drivers of official decision, concerning ‘working’ rules, ‘real’ rules, and ‘situation-types’, if correct, actually threaten Razian ELP. Problems arise for the LR-LP thesis (as delimited to Razian ELP) irrespective of whether those three Realist alternative drivers are classified as legal or non-legal norms. If they are non-legal, merits-based norms, then (a) those alternative drivers do much more work within official decision than ELP suggests is the case for those sorts of norms, and (b), Inclusive Legal Positivism may better, and might even be required, to explain them. Alternatively, if those Realist alternative drivers are better understood as source-based legal norms, then they cannot fulfil (or even be claimed by the law to fulfil) certain core functions that ELP attributes to legal norms.

Interpretative conventions and legal positivism

The thesis that the content of law depends on the "interpretative conventions" of legal practice implies that what the rules establish is not always determined by their literal meaning. To leave aside the literal interpretation of a word (by extending or limiting its ordinary meaning) or the literal interpretation of a rule (for example, by considering a circumstance as an exception, even if it is not explicitly mentioned), and to argue that it is what the law requires means entering the realm of the implicit. But what is "the implicit"? Does it consist in the criteria implicit in the social practice of law (i.e., in the interpretative conventions "without restrictions") or only in what the legislator has implicitly established (i.e., in the interpretative conventions "with restrictions")? In light of this distinction, recently pointed out by Cristina Redondo, I discuss some of the questions she raises about the "relevance thesis" of the legal system as something other than the "relevance hypothesis", and I critically discuss her view that the choice between the interpretative conventions "without restrictions" and those "with restrictions" implies a choice between inclusive and exclusive legal positivism.

Contingent Inclusivity and Exclusive Legal Positivism

Contingent Inclusivity and Exclusive Legal Positivism

On the Concept and the Nature of Law

The central argument of this article turns on the dual-nature thesis. This thesis sets out the claim that law necessarily comprises both a real or factual dimension and an ideal or critical dimension. The dual-nature thesis is incompatible with both exclusive legal positivism and inclusive legal positivism. It is also incompatible with variants of non-positivism according to which legal validity is lost in all cases of moral defect or demerit (exclusive legal non-positivism) or, alternatively, is affected in no way at all by moral defects or demerits (superinclusive legal non-positivism). The dual nature of law is expressed, on the one hand, by the Radbruch formula, which says that extreme injustice is not law, and, on the other, by the correctness argument, which says that law’s claim to correctness necessarily includes a claim to moral correctness. Thus, what the law is depends not only on social facts, but also on what the law ought to be.

Метафизический концептуализм Кеннета Химмы как разновидность инклюзивного юридического позитивизма

This article is an introduction to a very original legal theory developed by a contemporary American legal scholar Kenneth Einar Himma. His theory can be conditionally called as Metaphysical Conceptualism, this fully corresponds to both his methodological approach (conceptual analysis and metaphysics of the properties of legal concepts) and the claims he defends. The analysis proposed by Himma made a great theoretical contribution to the discussion of the intersection of morality and law and brought the discussion between inclusive and exclusive legal positivism to a new qualitative level. And although his theory is not without flaws, it is certainly of serious scientific interest for understanding the current state of discussions about law and morality.

La idea misma del positivismo jurídico

Gran parte de las discusiones recientes sobre el positivismo jurídico sostienen que la controversia a propósito de éste se cifra en la distinción entre sus versiones incluyente y excluyente. Podemos obtener una perspectiva todavía más amplia de la discusión saliendo del ámbito del positivismo jurídico incluyente y excluyente trayendo a escena también al no-positivismo. En todo caso, en este ensayo quiero defender que existe una distinción más fundamental en otra parte, aún dentro del propio terreno positivista. La distinción que tengo en mente es la que se da entre el positivismo jurídico naturalizado (J. Austin) y el positivismo jurídico no naturalizado (H. Kelsen). Aún y cuando por razones institucionales el positivismo jurídico ha sido ampliamente discutido en el vacío, a menudo suele darse por hecho que existen vínculos entre el positivismo jurídico y el “positivismo en sentido amplio” como tradición o posición filosófica –o, como se diría en los círculos filosóficos en la actualidad–que existen vínculos entre el positivismo jurídico y el naturalismo. Mi tesis es que debe distinguirse claramente la empresa positivista de Kelsen del positivismo jurídico como naturalismo, donde el principio de separación es simplemente un corolario del naturalismo y en el cual no existe, por supuesto, tesis de normatividad nomológica alguna.

The Inner Logic of Exclusivism (and Inclusivism): Shapiro's Shadowing

AbstractScott Shapiro, a prominent defender of exclusive legal positivism—exclusivism—has intriguingly (re)introduced a logical principle, the endorsement and rejection of which he (I take it) supposes can helpfully distinguish exclusivism from its contrary, inclusive legal positivism—inclusivism. It is an intriguing thought that principles pitched at such a high level of abstraction as this could distinguish between the two versions of positivism. My aim will be to test whether this principle—and associated principles—can do such distinguishing work.

A Pragmatic Reconstruction of Law’s Claim to Authority

AbstractRaz holds thatnecessarilyall legal authorities, evende factoauthorities, make a claim to legitimate authority. He does not say that legitimacy is a necessary property of law. This view, which I call theclaim view, constitutes my focal point in this paper. Many commentators have criticized this view. I discuss and dismiss three critiques of the claim view: theverification critique(the claim view is not empirically confirmed), thelegalistic critique(law claims legal authority, not moral authority), and thesemantic critique(legal obligations are semantically distinct from moral obligations).I submit that Raz equates the meaning of legal duties with that of moral duties and yet denies that legal statements entail moral propositions. In other words, I distinguish thesemantic identity thesisfrom thesemantic entailment thesis. Instead of a semantic interpretation of the claim view, I defend a presuppositional ascription of a general claim to moral authority to authoritative duty‐imposing and normatively committed uses of legal language by official spokesmen. I show that law’s claim to authority does not prove the truth of the sources thesis, because conceptual confusion or insincerity can affect the epistemic reliability of the propositions embodied in the claim, and because blatant immorality can altogether cancel law’s pragmatically presupposed claim to moral authority. I also argue that the claim view can only warrant two qualified versions of exclusive legal positivism, one of which is almost tautological, the other self‐contradictory. Finally, I suggest that exclusive legal positivism cannot be defended on conceptual grounds.

Scott J Shapiro between Positivism and Non-Positivism

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.

The Planning Theory and Natural Law

The practical, normative dimension of planning is a plausible source of the ‘family resemblances’ noted by a number of legal theorists between Scott Shapiro’s Planning Theory and natural law jurisprudence. Foremost among these resemblances is Shapiro’s contention that the law, necessarily, has a moral aim. The moral aim thesis is at first glance surprising given Shapiro’s intention to defend exclusive legal positivism and unequivocal rejection of what he takes to be the core commitments of natural law theory. Shapiro’s claim, however, is that although the law necessarily has a moral aim, this does not entail that it is successful in satisfying that aim. In order to assess this thesis, it is helpful to compare the Planning Theory with contemporary natural law approaches. Bringing Shapiro’s Planning Theory into dialogue with contemporary natural law theories can demonstrate some of the Planning Theory’s weaknesses as an alternative explanation of the ultimate grounds of the authoritativeness of legal norms. Some of these weaknesses, moreover, are instructive beyond the specific contours of the Planning Theory insofar as they generalise to other legal positivist approaches. In section one I consider Shapiro’s treatment of the so-called ‘Possibility Puzzle’ regarding the grounding relation between authoritative norms and legal authority. Shapiro’s denial of the capacity of earlier jurisprudential theories to resolve this puzzle overlooks what is – I suggest – a plausible solution developed by John Finnis on the basis of Joseph Raz’s theory of practical reason and norms. Section two then demonstrates why Shapiro’s attempt to combine a robust construal of the social facts thesis with a commitment to the thesis that law necessarily has a moral aim is ultimately unsuccessful.

UNA DEFENSA DEL POSITIVISMO JURÍDICO (EXCLUYENTE)

El presente trabajo trata de hacer una defensa de una particular versión de positivismo jurídico excluyente como teoría que mejor describe el derecho y sus referencias a la moral. Aunque se reivindica la tesis de las fuentes como la tesis iuspositivista por excelencia, el quid de la defensa se asienta sobre un análisis de los diferentes tipos y conceptos de moral que se consideran relevantes a la hora de la identificación del derecho. La posibilidad del error en el descubrimiento de la moral objetiva deja campo abierto para entender que el derecho no puede quedar determinado por otra cosa que no sean hechos sociales.

Norm Supercompliance and the Status of Soft Law

Recent empirical research, including my own, has exposed a previously overlooked behavior: instances in which people constrain themselves from doing something that they want to do because they believe a norm obligates them to do so, even though the norm in question does not, on a straightforward reading, contain such an obligation. I label this phenomenon “Norm Supercompliance.” Simply put, Supercompliers treat soft norms as if they are hard norms. For example, one who grudgingly complies with an aspirational norm, such as “a lawyer should aspire to render at least 50 hours of pro bono service per year” on the belief that it states an obligation is a Supercomplier. There is a vast literature in which authors assert that norms in legal contexts that possess certain weak or soft qualities — “soft laws” — do not deserve legal status because such norms fail to make a practical difference to the deliberation of those subject to them. This assertion unduly ignores or undervalues Supercompliance; as those engaging in it experience considerable changes in their decision-making when they follow soft law. While it is easy to write off Supercompliance as a self-defeating or masochistic mistake, it has the capacity to benefit those engaging in it, allowing them to reap the same rewards that come from accepting legal obligation under ordinary circumstances. In this Article, I set forth the elements of Supercompliance in detail, provide examples from the empirical literature in which those elements have been satisfied, and discuss the theoretical and practical implications thereof. In particular, I focus on how the discovery of this behavior might weaken arguments in support of Exclusive Legal Positivism. Illuminating the value of Supercompliance and, in turn, soft law, will give legislators a better sense of the tools at their disposal that can bring about improved behavior. It will help them build better legal norms.

En torno a la doble naturaleza del Derecho de Robert Alexy

The central argument of Robert Alexy’s thesis is developed, concerning the dual nature of Law that includes a real or factual dimension, and another, ideal or critical. This thesis is inconsistent with both the exclusive legal positivism and the inclusive legal positivism, and with some thesis of non-positivism in its extreme version. The dual nature of law expresses and justifies by Gustav Radbruch´s formula which states that the “extreme injustice is not Law” on the one hand, andby the argument of moral correctness on the other. As a result of this analysis, the definition of the Law is something that depends on social facts in what the Law should be.

MUST THE LAW BE CAPABLE OF POSSESSING AUTHORITY?

Joseph Raz famously argues that given that the law necessarily claims authority and given the account of authority he provides, exclusive legal positivism is the only tenable theory of law. In this article, I contend that even if one accepts that the law necessarily claims authority and that Raz's account of authority is correct, it does not follow that exclusive legal positivism is the only tenable theory of law. This is because even if the law necessarily claims authority, it need not be capable of satisfying the requirements for possessing authority laid down by the correct account of authority. Thus, even if exclusive legal positivism is the only theory of law according to which the law can satisfy those requirements, this does not show that exclusive legal positivism is correct.

Die Hart-Dworkin-Debatte als Grundlagenkontroverse der angloamerikanischen Rechtsphilosophie

2011 marks the 50th anniversary of the publication of H. L. A. Hart’s The Concept of Law - a milestone in the development of legal positivism. The book gained its broad influence particularly through the early critique by Ronald Dworkin. Five decades later the Hart-Dworkin debate still constitutes the discursive centre of Anglo-American legal philosophy. Multiple factors add to the persistent dynamic of the debate, including the multilayered critique of Dworkin himself, but also the broad and controversial reception of Dworkin’s theoretical counter-conceptions of law as a system of rules and principles and „law as interpretation“. Perhaps most importantly, in response to Dworkin the competing schools of inclusive and exclusive legal positivism emerged in simultaneous defense and modernization of the Hartian tradition. The relation of the Hart-Dworkin debate to German legal philosophy is marked by ambivalences. Although the philosophy of Gustav Radbruch played an important role in the formation phase of Hart’s theory, the discursive link weakened over the years, mainly due to the discourse-shifting influence of the substantial features of the German Grundgesetz of 1949.

John Austin and Constructing Theories of Law

One of the standard criticisms of John Austin’s work is that his portrayal of law, as essentially the command of a sovereign to its subjects, does not fit well with the way law is practiced or perceived by lawyers, judges, and citizens; and since the theory “fails to fit the facts,” Austin’s theory must be rejected in favor of later theories that have better fit. Many influential modern approaches to the nature of law, including Joseph Raz’s exclusive legal positivism and Ronald Dworkin’s interpretivism, while they criticize the lack of fit of theories like Austin’s, themselves unapologetically offer characterizations of legal practice that deviate in significant ways from the way most people practice or perceive law. Thus, it appears that many contemporary legal theorists wish to have it both ways: they use the deviations from conventional understandings as grounds for dismissing some theories by other scholars, but forgive or overlook comparable deviations in their own theories. This article explores what general principles can be learned, or developed, regarding when or to what extent deviation from the way law is practiced and perceived can be justified in a theory of the nature of law by other theoretical gains. Additionally, the article considers whether, in light of the proper approach to fit and mistake in theory-construction, Austin’s theory of law might be a more viable alternative than is conventionally assumed.

Legal Positivism and the Separation of Existence and Validity

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.