Legal Positivism Research Articles

Punishing Individuals Who Complied with Intolerably Unjust ‘Laws’ in Predecessor Regimes

AbstractSuppose a ‘law’ required individuals to report neighbours of a certain race for extermination. If individuals complied with such a ‘law’ to avoid the penal sanction of a death sentence, should a tribunal involved in the process of transitional justice in a successor regime punish them? Radbruch suggests that intolerably unjust ‘laws’ are not legally valid. According to Radbruch's Formula, reporting the neighbour would not be justified by law. The logical implication of this Formula is that the act of reporting was, in substance, abetment to murder (or possibly, genocide). Yet, punishing individuals who complied with the purported ‘law’ in the predecessor regime seems unfair, particularly as some legal positivists would regard the law as valid. Individuals might have acted according to what they believed was law and under duress (out of fear of penal sanction for failure to comply) in the predecessor regime. I examine whether these are valid considerations in proceedings before a tribunal prosecuting individuals for acts done in compliance with intolerably unjust ‘laws’ in predecessor regimes. While the perceived unfairness might militate against acceptance of Radbruch's Formula, if the considerations are not valid, Radbruch's Formula is unobjectionable.

JUDICIAL ACTIVISM: A LIVING IMAGE OF LAW REFLECTED IN THE SOCIAL MIRROR

This article analyzes the instrumentalization of law for the purpose of promoting social emancipation. It hypothesizes whether the leading role attributed to the Judiciary in the Democratic State of Law at the turn of the last century to the 21st century fulfills the promises of modernity based on the theory of the social contract and driven by the Enlightenment ideals to make effective the rights of freedom and social rights of the Constitution. To this end, first, legal positivism is presented, in search of recognition of subjects and equal participation; second, the historical bases of the constitutions are established, to confirm the metamorphosis of law and the model of jurisdictional control through the main and incidental channels; and third, to show judicial activism, mapping the decisions of the Supreme Court. The conclusion is about the importance of the Judiciary in the effectiveness of positive and negative rights. The article was guided by the hypothetical-deductive method and was based on books, scientific articles, legislation and jurisprudence.

The Role of H. L. A. Hart’s «Rule of Recognition» in Contemporary Anglo-American Legal Positivism

The article explores the role of the theory of «rules of recognition» by Oxford professor H.L.A. Hart in the contemporary theory of Anglo-American legal positivism, introduced by him in his central work «The Concept of Law» (1961), which has a significant influence on contemporary legal theory and philosophy. The authors reveal the content and meaning of the concept of «rules of recognition» as part of the secondary rules – «rules about rules» or «procedural rules» which determine the criteria for the validity of law along with the «rules of change» and the «rules of adjudication» in H.L.A. Hart’s terminology. The authors demonstrate the correlation with the «Grundnorm» of German legal philosophter H. Kelsen, which is more common in the Ukrainian legal theory, and which justifies the existence of constitutional norms as fundamental ones which determine the recognition of law by society and its individuals. The authors analyze the main positions of H.L.A. Hart’s followers – J. Raz, M. Kramer, B. Bix, S. Shapiro and others – regarding this theory and highlights the criticism of its individual provisions. The authors highlight how H.L.A. Hart tried to explain by the «rules of recognition» how law at the fundamental level is a matter of social convention (agreement between people inside the inhabited society), defending one of the components of legal positivism – the thesis of social fact (social sources of law thesis). The authors examine the interdependence between law and coercion by the State, the role of social practice in society’s subordination to law, the role of moral norms in the formation of law, in particular, the «rule of recognition», the correlation between the concepts of «rule of recognition» and «legal validity», and the problem of law enforcement by judges and governmental officials of the «rule of recognition». The authors summarize how H.L.A. Hart eliminates morality from the content of law in motivating judges and governmental officials to apply the rules of law, clarifies the position of legal positivism on the issue of the grounds for society’s submission to law, and demonstrates how the «empirical» theory of recognition prevails over the «analytical» theory, using R. Alexy terminology.

THERE IS NO SUCH THING AS THE SEPARABILITY THESIS

Abstract One commendable aspect of the ruminations by H.L.A Hart on legal positivism, which quite a few contemporary philosophers of law have not fully absorbed, is that he recognised the diversity of the points of contention that have pitted the devotees of positivism against the devotees of natural-law theories. Whereas some present-day philosophers of law are inclined to refer to “the separability thesis” of legal positivism – with the definite article “the” as a signal that there is one defining point of dispute between legal positivists and their opponents – Hart knew that there is no single such thesis. Natural-law theorists have in fact postulated numerous connections between law and morality which putatively clinch the character of law as an inherently moral phenomenon, and legal positivists have posed challenges to each of those connections or to the claim that any unchallenged connection serves to establish the inherently moral character of law.

Law: Language, Symbol, Rhetoric

Legal positivists regard law as written texts enacted and disseminated to be followed as rules. But this project rests on deeply mistaken conceptions about how language works. No written text stands alone and conveys a “plain meaning.” Law is expressed through language, but language does not exhaust the meaning of the law. Legal language always already draws on the ordinary language of the community, which, in turn, draws on a deeply symbolic realm, which it can never fully subordinate or explain. Rhetoric brings the symbolic substrate to life. Legal actors constantly search for the right words to deliberate with others. There is a resonant world to embrace and experience, but it can never be fully captured, understood, or expressed in our legal texts, which hover precariously above our shared ordinary language, which, in turn, is rooted in constitutive symbols that are sustained through an endless spiral of mediation, translation, and application. Nevertheless, we may reason together in a manner that generates rhetorical knowledge even if legal positivism is a failure.

Dinamika Positivisme Hukum dalam Perspektif Modernisme dan Postmodernisme

In this stud, the dynamics of legal positivism are explored through the perspective of modernism and postmodernism to understand changes in the concept of positive law over time. By analysing the evolution of legal views from these two paradigms, this research aims to identify transformations in the understanding of positive law over time. By paying attention to the influence of modernism which emphasizes rationality and legal certainty and postmodernism which highlights the diversity of interpretations on social contexts, this study will provide in-depth insight into the complexity of the dynamics of legal positivism in the contemporary context.

«Включающий» и «исключающий» правовой позитивизм: история формирования и концептуальные вопросы

The article examines current trends in modern Anglo-American legal positivism — “inclusive” and “exclusive” positivism. A study of the memory of Herbert Hart as the founder of analytical trends and works, his critics and followers of the existence of the two named vectors. the determination between them takes place in the field of axiology and fundamental provisions that determine the judicial procedure from nonlegal arguments.

How to explain the phenomenon of law – part II

The following article is divided into two parts. Its purpose is to briefly review the competing ways of understanding the law. The first presents the concepts of natural law with its variant- the law of nature with variable content and legal positivism (classical, the theory of "pure law" by Hans Kelsen, refined positivism), Gustaw Radbruch's formulas and the relations between them.The second part discusses the realistic concept of law (American realism, legal psychologism of Leon Petrażycki and Scandinavian ones), the concepts of the so-called the third way (hermeneutics, communication theory of law, the rhetorical concept of Chaim Perelman's law) and a multifaceted approach to law.

Philosophical Analysis of Positivism Article 6 (1) ICCPR in The Construction of Armed Criminal Group Human Rights

This study aims to identify philosophically and juridically related to the Deconstruction of Article 6 (1) ICCPR in the construction of KKB Human Rights and Deconstruction of Human Rights as positive law on the principles of Positivism Philosophy. This research uses normative (doctrinal) methods with a statutory approach (statute approach), and conceptual approach by implementing primary legal principles covering regional to international law and consisting of theories of positivism philosophical traditions, legal dogma, and other relevant literature. The results of this study show that the government should be able to provide firm action against Criminal Acts of Terrorism, especially KKB in Indonesia because there is the highest principle, namely Salus Populi Suprema Lex Esto, and the conception of human rights as positive law that is irrelevant to the founding father of legal positivism, namely the Philosophy of Positivism.

The Influence of Positivism and Empirism in The Enforcement of Islamic Inheritance Law in Indonesia

Positivism and empiricism are modern paradigms become the basic guidelines for the schools of legal philosophy, namely legal positivism and legal realism. However, the current condition in Indonesia is dominated by the paradigm of legal positivism so that everything must be by written law. The practice of inheritance division that is always based on the concept of 2:1 as in the Compilation of Islamic Law is felt to be incompatible with community justice. The purpose of this research is to enrich the study of the positivism and empiricism paradigms as a renewal of Islamic inheritance law in Indonesia. The benefit of this research is to inform that the integration of positivism and empiricism in law will produce competent law enforcement. This research is a normative research with a conceptual approach and data sources in the form of literature and data analysis techniques, namely evaluation. The results of this research are; (1) The factor that causes judges in Indonesia to use the judicial restraint approach excessively as a characteristic of legal positivism is the legal culture of the application of the civil law legal system. (2) The solution to the problem offered is to borrow Fazlur Rahman's double movement theory, namely historical contextualisation by taking universal values from the norm. Therefore, it is time for judges to be free to move to realize moral justice within the limits set by the Constitution and the Law on Judicial Power.

From Legal Positivism to Neo-Liberal Scientism

Despite decades of contentions between moral legalists and legal positivists about the place of morality in law, moral law has vehemently stood out as the end of history. The scientific experiment has despondently failed to logically evict the moral law from the jurisprudential discourse. This research article posits that moral law is the End of History as far jurisprudential evolution is concerned. It argues that the mechanization of law through the positivistic experiment is a moral debacle dented with logical inconsistencies and insurmountable fallacies. It thus uses the inseparability thesis to demonstrate the pivotality of moral law in every positive jurisprudence superstructure. It contends that law appeals to our moral sensibilities because it pre-supposes a conscience in the law giver, the law enforcer and the citizen who is supposed to abide by the law. This ought necessity therefore makes the trio morally credible to legislate, enforce the law and be legally bound by the principles and precincts established by the law.

LEGAL STATE AS A PHILOSOPHICAL AND POLITICAL PROBLEM (ON THE 30TH ANNIVERSARY OF THE RF CONSTITUTION)

The article shows the social and philosophical-theoretical foundations of the idea of the rule of law. Based on world political and legal thought, the nature and evolution of this phenomenon is revealed. It is argued that in the presence of the institution of human rights, the mechanism of separation of powers and the predictability of the actions of state power, the rule of law can be assessed not only as an ideal, but also as a real way of organizing the state. It has been demonstrated that public order is a constant compromise between various forces in society, determined by the intensity of social interests. One of the ways to overcome political alienation is the subordination of the state to law, designed to ensure predictability of the actions of state power, guaranteeing a stable legal order. It is emphasized that the issue of the state being bound by law cannot be resolved within the framework of the theory of legal positivism and requires turning to meta-legal concepts (justice, good morals, common good) that lie outside positive law, and their basis and boundaries must be sought in philosophical and legal principles. Special attention is paid to the understanding of the social state - a state that establishes social (material) guarantees for broad layers of the population, ghts poverty and introduces legal mechanisms for this purpose. It is shown that a legal social state is one of the central problems of Russian liberal philosophy of law. The rule of law, from the point of view of its representatives, must be supplemented by the “right to a decent existence”.

Dozvoljenost revizije u parničnom postupku – prilog diskusiji o reformi revizijskog prava i Vrhovnog suda

The admissibility of second appeal (Revision) in Serbian civil proceedings rests on a hybrid model, which entails the existence of so-called general second appeal, serving predominantly the private interests of the parties, and so called special second appeal (appeal by permission), serving primarily the public interests. The outcome of the existing regulation is the functional incapacity of the Supreme Court, which is backlogged like never before in its history. Therefore, it is time to clearly recognise the necessity of changing the paradigm of the supreme instance in the direction of shaping a precedent court of continental legal provenance. For this purpose, only a second appeal by permission would serve. However, the success of the reform would also depend on other circumstances, primarily those entailing the relinquishment of legal positivism.

Exploring the nexus between law and morality: ethical considerations in legal studies

This publication aims to furnish a comprehensive examination of the ethical elements inherent in the roles of judges, prosecutors, attorneys, and notaries, elucidating their influence on the content of pertinent legal statutes governing the professional status of these legal vocations. The research employed various methodologies, encompassing the analytical method, the synthetic method, the method of scientific generalization, the method of interpreting legal norms, and the formal-logical method. The examination of legal understanding from a moral and ethical perspective involves the scrutiny of two principal concepts: the concept of natural law and the concept of legal positivism. This analytical framework enables the author to assert that a hallmark of progressive law-making lies in the adherence to not only the tenets of natural human rights but also moral and ethical principles during the formulation of legislative acts. In the context of the role and significance of ethics in the professional conduct of judges, prosecutors, attorneys, and notaries, the author undertakes an analysis of pertinent Ukrainian laws. It is asserted that within each of the examined legal enactments, ethical requirements assume a predominant role in the regulation of the legal status of practitioners in the specified legal professions. For instance, the non-violation of rules of professional ethics is delineated as a fundamental duty for specific categories of legal practitioners, with breaches serving as grounds not only for disciplinary consequences but also for the termination of the authority. Building upon the aforementioned observations, it is affirmed that the ethical dimensions of jurisprudence hold significance within contemporary legal discourse across three dimensions: adherence to moral and ethical principles in the crafting of legislative instruments; avoidance of breaches against ethical principles in the course of judicial, prosecutorial, attorney-at-law, and notarial activities; and the imperative that moral and ethical requirements remain inviolate during the preparation of legally consequential documents.

Militant Rule of Law and Not-so-Bad Law

The article provides intellectual arguments and tools from legal dogmatics that can help to counter the rule of law backlash. It argues that resilience can be boosted by a systemic militant rule of law approach. When it comes to restoring the rule of law, legal theory turns to the Radbruch formula (supra-statutory law). This approach remains contested by lawyers who are convinced – following the tradition of positivist legal theory – that invoking this formula is unacceptable because it violates a fundamental requirement of the rule of law, namely that of legality. Irrespective of the value of this concern, Radbruch’s formula is not applicable to the current demise of the rule of law, as the law resulting from cheating and abuse in illiberal regimes does not result in evil law (though it may facilitate such developments). Instead of evil law, we face not-so-bad law. Legal imperfections exist in every legal system, and militant rule of law necessitates the systemic revision of these shortcomings in order to preempt the abuses of an anti-formalistic populist regime. In illiberal regimes, the self-corrective mechanisms of the rule of law are gradually eliminated, but the name of the game remains the rule of law. It means that judges still have (some) power to counter the backlash using extant interpretive techniques (for a while). This article will begin by introducing the concept of not-so-bad (NSB) law as an imperfection of the rule of law. In Part Two, the validity of NSB laws is discussed by relying on the source theory. It argues that even if validity is a matter of conformity to the source, the source can be understood to contain a legal merit component as determined by the rule of law, and falling short on this legal merit component can constitute a ground for declaring the norm’s invalid. Part Three describes the abuses of the rule of law in illiberal democracies and describes how the NSB law of illiberal regimes does not satisfy the validity requirements of legal positivism. Part Four discusses the opportunities open to judges for resisting or undoing NSB law using existing techniques of legal interpretation and without violating rule of law principles.

The Power of Proof of an Online Arisan Agreement in the Verdict of PKPU Number 10/Pdt-Sus-PKPU/2021/Pn.Smg in Accordance with the Theory ofLegal Positivism and Justice

This thesis is entitled "The Strength of Proof of Online Arisan Agreements in PKPU Decision Number 10/Pdt-Sus-PKPU/2021/PN.Smg Seen from the Theory of Legal Positivism and Justice". This thesis aims to find out and examine the strength of proof of online agreements via the WhatsApp application in terms of the theories of positivism and justice as well as to find out and examine procedural law reforms that are needed to accommodate the use of technological means as evidence in business/business relationships. This research is normative legal research with a conceptual approach and statutory regulations. The data source is secondary data consisting of primary legal materials and secondary legal materials, analyzed using legal analysis methods, namely qualitative methods. The results of the research show that there are disparities in the implementation of electronic evidence assessment because there is electronic evidence that is considered to have weak evidentiary strength even though they are supported by other evidence, there are also those that are considered to have decisive evidentiary strength in resolving cases in court so that they do not provide equitable justice. for society. The panel of judges in assessing electronic evidence should not only prioritize legal certainty but also justice which should be realized to protect the interests of the parties reform of procedural law in terms of implementing electronic evidence in Indonesian trials requires reform of three main pillars of law, namely legal substance, legal structure. and legal culture.

Facing the Future: Conceiving Legal Obligations Towards Future Generations

Conceiving legal obligations towards future generations is challenging—especially from a positivist stance and if obligations and claims are understood as being correlative in nature. Legal obligations towards future generations are often rejected from the outset if (and insofar as) there is no explicit acknowledgement or established doctrine. This neglects the power of sound legal interpretation. I argue that obligations towards future people and generations are grounded in the relational character of human rights and that their positivity is not a problem in a legal order containing norm texts that can reasonably be interpreted as acknowledging human rights; no additional enactment is necessary for these obligations to be part of the positive law. This claim is based on a (novel) concept of fundamental rights which is compatible with legal positivism.

POLITICAL TRIAD DOGMATISM CASE STUDY OF INDONESIAN STATE INSTITUTIONS IN THE IMPLEMENTATION OF PHILOSOPHISCHE GRONDSLAG

As a result of changes in a system, the transformation of division of power into separation of power, created a strong dogmatic influence in the structure of the institutional system of the Republic of Indonesia. This led researchers to explore dogmatic understanding in the direction of the state in a Philosophische Grondslag manner. Using dogmatic, philosophical and historical learning study models in its preparation and paying attention to the concepts of critical thinking, which leads to a view of absolute dogmatism. In the history of science or intellectual conception, the foundation or view of complete confidence in the support of truth is something that must be sought and proven to be true, so that it can be used as a preview in formulating a more perfect conception in the future both individually and socially, as a human being whose orientation is brcountry, researchers seek answers to these contemplations to become useful research progress. There are many speculations on the hypotheses underlying this research, so that the direction is not legal positivism, the researcher discusses the philosophical dogmatic framework related to the direction of construction of the study of the division of power in state institutions with the final result whether it is still on the path of philosophical grondslag and in line with the aims, vision and mission of the Republic of Indonesia. as stated in the fourth paragraph of the preamble to the 1945 Constitution. In preparing this research, the focus is on a dogmatic understanding of Pancasila as Philosophische Grondslag and an understanding of the dogmatic concept of the Trias Politika from John Locke to the refinement of the concept of the dogmatic idea of the Trias Politika of Montesquieu on its implications for the division of the State's institutional system. Republic of Indonesia.

From the ideal legislator to the competent speaker: uncovering the deception in legislative intent

ABSTRACT Central to the legal positivism of the nineteenth and the first half of the twentieth century was the dogma of the Ideal Legislator. Legal materials were to be interpreted as the work of an omniscient, coherent, consistent legislator. We argue that this dogma persists in the different guise of the competent speaker model, on which legal materials are the work of a competent speaker, who follows all the pertinent semantic and pragmatic rules. We will first lay out the Ideal Legislator dogma as applied in legal interpretation, arguing that this dogma does not limit interpretive discretion but rather amplifies it by hiding it under the veil of an inexistent, purely instrumental rationality. We will then turn to the competent speaker model, showing that, despite its apparent neutrality, it proves to be a reincarnation of the Ideal Legislator dogma, for it, too, amplifies interpretive discretion, only it hides it under the veil of an inexistent, purely linguistic rationality. Finally, we will inquire into the different types of rationality and their relations, arguing that there is always a choice and value judgment involved in ascribing rationality to legislators, and that these choices and judgments need to be carefully inspected and normatively justified.

THE ANTHROPOLOGICAL DIMENSION OF THE PHILOSOPHICAL AND LEGAL ASPECT OF KARL MARX’S TEACHING

The paper examines the content of the philosophical and legal aspect in the multifaceted teaching of Karl Marx in comparison with the main paradigms of understanding of human freedom – legal positivism and liberalism. It is concluded that a person, having deployed his essential powers, on the basis of labour and active creativity, should turn from a means of achieving any goals into a comprehensive and harmonious personality as a necessary supreme goal of social development. Labour should be considered not only as a process that produces the objective wealth of things, but also as a process that produces society.