Version Of Legal Positivism Research Articles

Granice sporów interpretacyjnych w prawoznawstwie

Does legal interpretation have borders? Are these borders conventionally established? What makes the given ‘legal reasons’, set forth by certain normative theories of legal interpretation, acceptable in legal discourse (even if the reasons are wrong)? In the present paper, we argue that the notion of the borders of legal interpretation is linked to the general notion of the borders of law. We indicate the scope of ‘interpretive theoretical disagreements’ in law, as discussed by certain new, ‘institutional’ versions of legal positivism. Interpretive borders are not fully determined by the given ‘institutional’ framework. In our view, these borders are also more generally determined inter alia by certain truistic (platitudinous) beliefs related to law and interpretation.

The History and Foundations of Criticism of H.L.A. Hart’s Legal Positivism in R. Dworkin’s Philosophy of Law

The paper discusses the Anglo-American philosophy of law of the 20th century, more specifically the philosophy of law of Ronald Myles Dworkin and his criticism of the legal positivism of Herbert Lionel Adolphus Hart. The author presents the history of the criticism of legal positivism in Ronald Dworkin’s philosophy of law and distinguishes historical stages. The subject of the study is the critique of legal positivism but not the Hart-Dworkin debate itself, well known in Western philosophy of law. The reason is that the discussion was conducted between Dworkin and Hart’s supporters but not between Dworkin and Hart by himself. The latter responded to the criticism only after twenty seven years. The article explains why Dworkin chose for his criticism Herbert Hart’s version of legal positivism. This is due to the fact that Dworkin highly appreciated Hart’s positivist theory of law and characterized it as the “most clear.” The article presents the methodological foundations of criticism of Hart’s legal positivism in Dworkin’s philosophy of law. It reveals a methodological divergence between the two legal theories, which directly affects the understanding of the concept of law and its content. Therefore, we can assume that the legal theories of Hart and Dworkin are two competing models of law: Dworkin’s model considers law as a set of rules and principles and Hart’s model acknowledges only rules and court decisions as a source of law. The article also presents the key principles of positivism criticized by Dworkin. These principles, firstly, interpret law as a set of legal rules determined through a special legal criterion, secondly, provide the judge with an opportunity to make a decision “at his own discretion” in a situation not regulated by law, and, thirdly, recognize only legal rights and obligations enshrined in legal regulations. It is important to note that in this article the author describes criticism as an independent phenomenon of legal philosophy with a particular focus on the history and foundations of this phenomenon.

THE PLACE OF FORCE IN GENERAL JURISPRUDENCE

ABSTRACTThis essay reviews Frederick Schauer's book, The Force of Law (2015). Schauer argues that coercion is central to legal practice and should be no less important in legal theory. In doing so, Schauer presents formidable challenges to standard versions of legal positivism—and does so from within the positivist framework. Much of Schauer's criticism on that score is sound. His analysis of the role coercion can play in accomplishing law's moral tasks is also welcome and important. Nevertheless, Schauer's jurisprudential framework comes up short in its inability to distinguish law from other social practices that also use force. The Force of Law’s strong critique of contemporary positivism and the incompleteness of its own method make an indirect case for the classical tradition of theorizing that understands law in light of its moral purposes.

The Power of Positive Planning

Shapiro argues that the key to understanding the fundamental nature of law is to see the officials tending the legal system as engaged in social planning and to see laws as plans (2011: 171, 225). The most important consequence he draws from this identification of laws with plans is a version of legal positivism not too far removed from its traditional enunciations by Bentham, Austin and Hart. There are insights to be won from thinking of laws as plans. There are also insights that have been won from thinking of the laws as rules and principles or as a system of coercion serving the interests of a ruling class. Shapiro clearly thinks these rival perspectives on law are, in any interestingly strong form, false. The Planning Theory, in its strong form, he contends is literally true. Laws share their most important features with paradigm instances of plans. About this, I am not so sure. Putting aside customary law, which Shapiro concedes is merely ‘plan like’, the politics of legislation is only sometimes coherent enough to be called ‘planning’. Moreover, many laws that are plausibly seen as the steps or results of plans are not themselves plans.

Is Legal Positivism as Worthless as Many Italian Scholars of Public Law Depict It?

AbstractAn increasing number of Italian scholars are beginning to share the idea that the conceptual basis of legal positivism (LP) is wrong, particularly in the field of Public Law. According to a group of theories called “neoconstitutionalism,” constitutionalism is to be understood not only as a principle based on the need to impose legal limits to political power, but also as an aggregation of values capable of continually remodelling legal relationships, positioning itself as a “pervasive” point of reference for legal experience. A recent essay by Professor Antonio Baldassarre, President Emeritus of the Constitutional Italian Court, about the “misery of legal positivism” is a good expression of this view. In this article, the ideas outlined by Baldassarre are examined and criticized. The paper also tries to defend a version of legal positivism, which has both a conceptual and prescriptive meaning, relating to decisions made on the basis of rules. This view is based on the two correlated concepts of primary formalism and secondary formalism of “competence and procedure.”

La interpretación jurídica como co-creación

The claim of this paper is to argue contra Waluchow’s and Raz’s versions of legal positivism – as main representatives of the inclusive and exclusive variants – that legal interpretation always requires an appeal to law’s rea- son or purpose. The main thesis could be expressed as follows: one technique of legal interpretation (the author labels it as systematical), one that demands that the interpreter interprets the law through its general pur- poses in legal practice, is not one technique amongst many, it is necessary in all legal interpretation.The second purpose of the paper is to argue that this systematic approach towards legal interpretation enables an evaluative role on the part of the interpreter that may be called “interpretative creativity”. Due to this, the creative role in legal interpretation is not an exception, but a necessary element in all interpretation. This creative role is not a defect or an inevitable evil in law, but is functional and instrumental to law’s coordinating activity of citizen’s conducts in a reasonable manner.Resumen:Este trabajo se propone mostrar, en contraposición al positivismo jurídico de Wilfrid Waluchow y Joseph Raz —como representantes, respectiva- mente, de la versión incluyente y excluyente del positivismo contemporáneo—, que la interpretación jurídica supone atender siempre, y no de modo excepcional o recortado, a las razones o fines del derecho. La expresión metodológica de esta tesis podría enunciarse diciendo que la interpretación teleológica-sistemática, mediante la cual el intérprete determina el sentido de las normas a la luz de los fines globales de la práctica jurídica, no es un método interpretativo más, sino el modo necesario de toda interpretación jurídica.El segundo propósito de este trabajo es argumentar que la dimensión teleológica sistemática de la interpretación abre un espacio para la valoración por parte del intérprete que podría denominarse, “creatividad interpretativa”. Por esto mismo, la creatividad en la interpretación jurídica no es una excepción, sino una nota general y necesaria de toda interpretación. Se intentará mostrar, por último, que esta creatividad interpretativa no es un defecto o un mal inevitable del derecho, sino que es funcional o instrumental a la función del derecho de coordinar conductas de modo razonable.

The Discredit of Legal Positivism in the Italian Doctrine of Public Law: Some Critical Remarks

Among Italian scholars, there is more and more room for the idea that the conceptual basis of legal positivism (LP) is misleading, particularly in the field of Public Law. According to a group of theories called 'neoconstitutionalism', constitutionalism is to be understood not only as a principle based on the necessity to pose legal limits to the political power, but also as an aggregation of values capable of continuously remodeling legal relationships and positioning itself as a 'pervasive' point of reference for the legal experience. Very representative of this view is the recent essay by Professor Antonio Baldassarre, President emeritus of Constitutional Italian Court, about the 'misery of legal positivism'. In this article, the theses purported by Prof. Baldassarre have been examined and criticized. The author has also tried to defend a version of legal positivism which has a conceptual and prescriptive meaning relating to decisions made on the basis of rules. This is based upon the two fundamental concepts of primary formalism and secondary formalism of 'competence and procedure'.

Interpretivism and Conventionalism: Contributions to the Critical Assessment of Contemporary Methodological Legal Positivism

The essay provides a critical analysis of certain versions of legal positivism that combine interpretivism with (jurisprudential) conventionalism. The first sections of the essay are devoted to clarifying the key conceptual constructions around which the analysis revolves. Interpretivism is taken as a methodological programme for legal theory that is based on the idea that the nature of law is to be clarified by way of interpreting information gathered from participant communication about law. Jurisprudential conventionalism refers to the theoretical claim that normativity of law can be traced back to an interdependent convergence of behaviour among the officials of legal systems that gives rise to a duty-imposing conventional rule (commonly called the rule of recognition). Directives become normative as legal standards if they meet the conditions of legality set out by that conventional rule. Herbert Hart is taken as the paradigmatic representative of the criticised version of legal positivism. The essay argues that the core idea of interpretivism is sound and worth preserving, but, for interpretivist legal theories, jurisprudential conventionalism is to be rejected. The problem for accounts of law that combine interpretivism with conventionalism is that they cannot account for the distinctive normativity of law. The reason being that they cannot deny the central conceptual significance of the legal obligations imposed on the ordinary citizens of the legal system (it is a fact that participant communication attributes to law that ability to obligate ordinary citizens), but no conventions generated by the convergence of the behaviour of officials can provide the normative basis for such obligations. The essay tries to provide a detailed analysis of Hart's efforts to overcome the problems of jurisprudential conventionalism. The closing section aims at showing the way the position taken by the author is to be distinguished from the familiar claims of natural lawyers.

Farewell to the Exclusive-Inclusive Debate

In recent years there has an ongoing debate between two versions of legal positivism. According to one, called exclusive positivism, whenever the law refers to morality, the law necessarily directs its subjects to an external, non-legal, standard, because there is a conceptual impossibility in incorporating moral standards into the law. According to the rival inclusive positivist position, such incorporation is possible, and therefore moral standards can be (although they need not be) part of the law. In this article I argue that both views are mistaken since they both assume that whenever words like `equality`, `justice` etc. appear in the law they refer to moral standards. Rather, I argue, these words refer to legal standards, which are different from the moral standards. As a result the question of the possibility of incorporation can be avoided, and the debate between exclusive and inclusive positivists put to rest.

La ironía del positivismo jurídico

Este artículo discute la actual disputa familiar entre los llamados positivistas "blandos" y "duros". Se sostiene que esta disputa muestra que el positivismo jurídico contemporáneo ha rechazado el importante y original enfoque que le identificaba originariamente. El positivismo jurídico nació como una teoría del Derecho moderno, una forma de Derecho que era artificial y contingentemente construido, más que descubierto a través del uso de la razón. El estado actual de la teoría y práctica jurídica muestra la necesidad de volver a esta versión "ética" del positivismo jurídico, porque estamos asistiendo a un tipo de involución jurídica hacia formas jurídicas premodernas que suelen denominarse "neo-constitucionalismo"; una involución que -si el enfoque del positivismo jurídico original es todavía válido, tal como este artículo defiende- debe resistirse. Tal teoría "ética" fuerte debe entender a la legislación como el non plus ultra del Derecho, y a los jueces como sometidos al legislador, sin reducir la aplicación a una actividad mecánica.

The Separation Thesis and the Limits of Interpretation

There are many versions of legal positivism; perhaps as many as there are legal positivists around. All the versions of legal positivism, however, subscribe to the so-called Separation Thesis. This thesis basically maintains that detenriining what the law is, does not necessarily, or conceptually, depend on moral or other evaluative considerations about what it ought to be in the relevant circumstances. Legal positivists differ, however, and quite substantially, over the appropriate interpretation of this thesis. The so-called ‘strong’, or ‘exclusive’ version of legal positivism maintains that moral considerations never determine the legal validity of norms. ‘Soft’ positivists, on the other hand, do maintain that there is a close relation between legal validity and morality, but they hold that this relation is, at best, a contingent matter; it does not derive from the nature of law or legal reasoning as such. Soft-positivists claim that moral considerations determine legal validity only in certain cases, namely, in those cases which follow from the rules of recognition that happen to prevail in a given legal system.

Inclusive Legal Positivism.

This book develops a general theory of law - inclusive legal positivism - which seeks to remain within the tradition represented by authors such as Austin, Hart, MacCormick, and Raz, while sharing some of the virtues of both classical and modern theories of natural law, as represented by authors such as Aquinas, Fuller, Finnis, and Dworkin. W. J. Walchow articulates and defends his own version of legal positivism, which is a refinement and development of the views of H. L. A. Hart. The author shows how inclusive legal positivism demonstrates that the existence or content of positive law does depend on moral considerations; and that this is consistent with legal positivism. In addition, Waluchow helps to remove the confusion which has marred current jurisprudential debates about the nature of law. He argues that these debates are often clouded by failures to appreciate that different theorists are offering different kinds of theories and attempting to answer different questions. He also accuses theorists, principally Ronald Dworkin, of failing to characterize opposing theories correctly.