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"Legal positivism."
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Morality and the nature of law
Morality and the Nature of Law explores the conceptual relationship between morality and the criteria that determine what counts as law in a given society the criteria of legal validity. Is it necessary condition for a legal system to include moral criteria of legal validity? Is it even possible for a legal system to have moral criteria of legal validity? The book considers the views of natural law theorists ranging from Blackstone to working and rejects them, arguing that it is not conceptually necessary that the criteria of legal validity include moral norms. Further, it rejects the exclusive positivist view, arguing instead that it is conceptually possible for the criteria of validity to include moral norms. In the process of considering such questions, this book considers Raz's views concerning the nature of authority and Shapiro's views about the guidance function of law, which have been thought to repudiate the conceptual possibility of moral criteria of legal validity. The book, then, articulates a thought experiment that shows that it is possible for a legal system to have such criteria and concludes with a chapter that argues that any legal system, like that of the United States, which affords final authority over the content of the law to judges who are fallible with respect to the requirements of morality is a legal system with purely source-based criteria of validity.
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Explaining the sources of judges’ legal conceptions in the Mexican judiciary
When explaining judicial decision-making, ideological accounts of judicial behavior have not seriously considered the judges’ legal conceptions. This paper brings together two disciplines that used to sit at separate tables: judicial politics and legal theory. It aims at enhancing ideational accounts of judicial behavior by analyzing how legal conceptions such as legal positivism and post-positivism are shaped and socially reproduced. We claim that legal conceptions are, to some extent, determined by the type of educational model under which a judge studied, and by his/her level of education. We surveyed federal judges working in Mexico (N=71) to explore and test our contention and computed two analyses: hierarchical cluster analysis and binomial logistic regressions. We identified three clusters of judges’ legal conceptions, where the educational model showed a significant effect in shaping the judges’ legal conceptions. Las explicaciones ideacionales del comportamiento judicial no han considerado seriamente las concepciones jurídicas de los jueces al explicar la toma de decisiones judiciales. En este artículo, unimos dos disciplinas que solían sentarse en mesas separadas: la política judicial y la filosofía del derecho. El propósito de este artículo es mejorar las explicaciones ideacionales del comportamiento judicial mediante el análisis de cómo se configuran, moldean y reproducen socialmente concepciones jurídicas como el positivismo y el post positivismo. Afirmamos que las concepciones jurídicas, en cierta medida, están determinadas por el tipo de modelo educativo bajo el cual estudió el juez. Para probar nuestro argumento, realizamos una encuesta con jueces federales en México (N=71) y realizamos dos análisis: análisis de conglomerados jerárquicos y regresiones logísticas binomiales. Identificamos tres grupos con distintas concepciones legales, en los cuales el modelo educativo mostró un efecto significativo en la configuración de dichas concepciones.
Journal Article
The Cambridge companion to legal positivism
\"Although the subject-matter of jurisprudence (sometimes called 'legal theory') is not understood in precisely the same way everywhere, everyone agrees that the question of the nature of law falls within the purview of jurisprudence. The central question is, 'What is law?', or 'What is the nature of law?', and it is usually here that one encounters legal positivism and its main challenger, natural law theory, for the first time. The central question in the debate between legal positivists and natural law thinkers - the perennial finalists in the world cup of legal theory - is often said to concern the relation between law and (true) morality: Whereas natural law thinkers maintain that law is necessarily moral, that there is a necessary connection between law and morality, legal positivists hold instead that the relation between law and morality is contingent, that law is sometimes moral, sometimes immoral, and argue that the question of whether we have an obligation to obey the law can be answered only after we have considered the content and the administration of the law in the relevant jurisdiction\"-- Provided by publisher.
BOOK
Legal philosophy as practical philosophy
My purpose in this paper is to make a case for the strictly philosophical nature of our discipline, legal philosophy. I first take a prior stance on the issue of what philosophy is in general and outline some premises for the definition of philosophical rationality. This then leads me to critically examine Bobbio’s dichotomy between jurists’ legal philosophy and philosophers’ legal philosophy. It is essential to reformulate the relationships between legal philosophy as a “special” or “regional” discipline as opposed to “general” philosophy. So thirdly, I re-examine this problem using the distinction between concepts of law and ideas in law. Fourthly, I defend the thesis that, when ascertaining the type of philosophy the philosophy of law is, the most decisive factor is not so much (or not only) the relationship between philosophy of law and philosophy in general as, more importantly, the relationship between it and law itself. I argue that the nature of law itself makes its practice inevitably and ineluctably associated with philosophical ideas and conceptions. This practical view of law is tightly bound with a view of legal philosophy as a practical philosophy, and this is the main thesis I shall defend here. Different expressions of this practical view of law can be found in prominent contemporary authors who go beyond the dichotomy of legal positivism-natural law (such as Nino, Alexy, Dworkin, Atienza). The essential feature which I regard ties philosophy of law to the condition of some “practical philosophy” is the role played by the concept of value, i.e. the centrality and pre-eminence of its evaluative dimension.
Journal Article
Legal positivism in a global and transnational age
\"A theme of growing importance in both the law and philosophy and socio-legal literature is how regulatory dynamics can be identified (that is, conceptualised and operationalised) and normative expectations met in an age when transnational actors operate on a global plane and in increasingly fragmented and transformative contexts. A reconsideration of established theories and axiomatic findings on regulatory phenomena is an essential part of this discourse. There is indeed an urgent need for discontinuity regarding what we (think we) know about, among other things, law, legality, sovereignty and political legitimacy, power relations, institutional design and development, and pluralist dynamics of ordering under processes of globalisation and transnationalism. Making an important contribution to the scholarly debate on the subject, this volume features...essays of theoretical and applied legal philosophy as well as socio-legal accounts that reflect on whether legal positivism has anything to offer to this intellectual enterprise. This is done by discussing whether global and transnational cultural, socio-political, economic, and juridical challenges as well as processes of diversification, fragmentation, and transformation (significantly, de-formalisation) reinforce or weaken legal positivists' assumptions, claims, and methods. The themes covered include, but are not limited to, absolute and limited state sovereignty; the 'new international legal positivism'; Hartian legal positivism and the 'normative positivist' account; the relationship between modern secularisation, social conventionalism, and meta-ontological issues of temporality in postnational jurisprudence; the social positivisation of human rights; the formation and content of jus cogens norms; feminist critique; the global and transnational migration of principles of justice and morality; the Vienna Convention on the Law of Treaties rule of interpretation; and the responsibility of transnational corporations.\"-- Back cover.
Book
Does Anythin Hang on the Autonomy of EU Law?
(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1293-1299 | Article | (Abstract) Jurisprudential accounts of the autonomy of EU law have struggled to offer a compelling account of its unique features. Nevertheless, I argue that Ronald Dworkin’s court-centric methodological approach is better-suited than Hartian positivism to shed light on the notion that EU law is autonomous. This is because most questions about the autonomy of EU law, when asked from a positivist perspective, are of little or no practical significance and philosophical inquiry will inevitably be inconclusive. By contrast, the autonomy of EU law is routinely employed as a normative principle helping EU courts to decide the issue of which party should win the case at hand. It is better understood as a shorthand reference to a political requirement, namely that EU courts ought to identify the main values behind European integration and to build – as opposed to find in the extant legal materials – a coherent body of principles.
Journal Article
Legal Methods for the Study of EU Institutional Practice
Methodological choices in the legal study of the role of EU institutions – The so-called doctrinal legal method is appropriate, provided that it includes the analysis of key elements of non-legal institutional practice – Simple distinction between the study of ‘law in the books’ and that of ‘law in action’ to be qualified – Doctrinal legal scholarship is meaningful only when it acknowledges and incorporates a certain amount of ‘law in action’
Journal Article
Defending Dworkin’s One-System Anti-Positivism
In this article, I argue that Dworkin’s one-system view of law and morality is not as easy to refute or dismiss as some would suggest. In a recent article, Dindjer criticizes a new kind of opposition to legal positivism characterized by both its opposition to a two-system view of law and morality and its promotion of a one-system alternative picture. By re-examining Dworkin’s criticisms of the two-system view and by providing additional reasoning of my own, I show that Dworkin’s one-system interpretative approach is not just sensible but also promising in refocusing contemporary debates in general jurisprudence on a moral and political reading of the structural features of law.
Journal Article
Steps Towards a Legal Ontological Turn: Proposals for Law's Place beyond the Human
Environmental law remains grounded in a ‘one-world world’ paradigm. This ontological structure asserts that, regardless of variation in world-construing, all beings occupy one ‘real’ world of discrete entities. The resulting legal system is viewed as an independent set of norms and procedures regulating the ‘human’ use of the ‘environment’ by specifying allowable harm rather than adjudicating on mutually enhancing relations. This legal form fails to fulfil its purpose of prevention and remediation, and constitutes a significant barrier to overcoming world(s)-destroying conditions. As such, we take up the injunction for a ‘legal ontological turn’ so as to lay bare these assumptions, and to be able to move beyond their constraints into a renewed exploration at the intersection of vastly differing legalities. In dialogue with systems-grounded ecological jurisprudence(s), Indigenous legal thinking, and anthropological insight, we seek to ground future discussions towards building a truly earth-sustaining form of environmental law for all beings.
Journal Article
The End of Jurisprudence
For more than forty years, jurisprudence has been dominated by the Hart-Dworkin debate. The debate starts from the premise that our legal practices generate rights and obligations that are distinctively legal, and the question at issue is how the content of these rights and obligations is determined. Positivists say that their content is determined ultimately or exclusively by social facts. Anti-positivists say that moral facts must play a part in determining their content. In this Essay, I argue that the debate rests on a mistake. Our legal practices do not generate rights and obligations that are distinctively legal. At best, they generate moral rights and obligations, some of which we label legal. I defend this view by drawing analogies with other normative practices, like making promises, posting rules, and playing games. And I try to explain why it looks like legal practices generate distinctively legal rights and obligations even though they do not. I conclude with some thoughts about the questions that jurisprudence should pursue in the wake of the Hart-Dworkin debate.
Journal Article