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Topic: Legal positivism

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In the News (Thu 21 Mar 19)

  Legal positivism - Wikipedia, the free encyclopedia
Legal positivism is a school of thought in modern and contemporary jurisprudence and the philosophy of law.
Legal positivism stands in opposition to various contrary ideas in the tradition of natural law, a body of legal theory asserting that there is an essential connection between law and morality.
The legal positivist emphasizes that the law that forbids theft and the law that commands that you drive on the proper side of the road are two exemplars of the same phenomenon.
en.wikipedia.org /wiki/Legal_positivism   (1073 words)

 Positivism - Wikipedia, the free encyclopedia
Legal positivism is a view which, in contrast to the natural law view, claims that a legal system can be defined independently of evaluative terms or propositions.
Sometimes legal positivism is understood as the view that laws must be obeyed, whatever their content.
More broadly, Positivism was a major social ideology of Poland in that period and helped stimulate a growing interest in science, technology and economic development.
en.wikipedia.org /wiki/Positivism   (297 words)

 A.-P. Chamboredon - Language theory, semiotics: critism of legal positivism?   (Site not responding. Last check: 2007-11-06)
The aim of legal performatives is to create facts not only intersubjective acts, valuable for the parties in the conversational context, but also for the other, even for those who haven't any knowledge of the relation that binds them.
Applyed to law there are two mains types of "legal semiotics", one is oriented towards logical formalisation of legal propositions, the other is attached to the construction of a legal grammar as a set of rules governing the production and interpretation of speeches and social practices with a "legal" value.
If the legal semiotic may bring to the jurists some elements of description of what law is, it enrichers the understanding allowing to compare methodologically some different types of normative speeches to other social practices.
www.reds.msh-paris.fr /communication/textes/anthony2.htm   (3180 words)

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When legal positivists and realists spoke of 'law,' they were referring only to the sum total of actually enacted statutes and regulations and to the actions of judges--the system of rules that, like it or not (and rightly or wrongly), were backed by the threat of force.
Although legal positivism still exerts a powerful hold over many legal academics and students, the growing strength of the new normative philosophy may indicate that the positivist separation of law from morals is currently on the wane.
The new legal philosophers have succeeded, however, in showing that many of the conclusions of the older schools, such as the positivists' rigid severance of law from morals, the pragmatism of the realists, and the empiricism of the efficiency approach, are seriously flawed.
www.bu.edu /rbarnett/contscholar.htm   (8441 words)

 The Persistent Spectre: Natural Law, International Order and the Limits of Legal Positivism
Austin's positivism expelled international law from the province of jurisprudence because it failed to conform to that theory's narrowly constructed definition of `law'.
Successive attempts by leading legal positivists to redeem international law for their school have led to a dilution of positivist doctrine, but have not furnished a coherent account of international law's juridical character.
Legal positivism is also having an adverse impact on the theory and practice of international human rights law.
www.ejil.org /journal/Vol12/No2/ab2.html   (291 words)

 Legal Positivism [Internet Encyclopedia of Philosophy]
Legal positivism is a conceptual theory emphasizing the conventional nature of law.
The word 'positivism' was probably first used to draw attention to the idea that law is "positive" or "posited," as opposed to being "natural" in the sense of being derived from natural law or morality.
According to inclusive positivism (also known as incorporationism and soft positivism), it is possible for a society's rule of recognition to incorporate moral constraints on the content of law.
www.utm.edu /research/iep/l/legalpos.htm   (6945 words)

 Positivism   (Site not responding. Last check: 2007-11-06)
Positivism is the view that serious scientific inquiry should not search for ultimate causes deriving from some outside source but must confine itself to the study of relations existing between facts which are directly accessible to observation.
Positivism is also the name of a legal view, usually called legal positivism.
Sometimes legal positivism is also understood as the view that the law must be obeyed, whatever its content.
www.yotor.com /wiki/en/po/Positivism.htm   (205 words)

Coleman calls that form of Legal Positivism which only denies the existence of a necessary connection between law and morality "Negative Positivism" and claims that it is valid "just as long as the idea of a legal system in which moral truth is not a necessary condition of legal validity is not selfcontradictory" (p.
Dworkin holds Legal Positivists to the hard facts view in virtue of condition (1) for the existence of social rules, according to which the behavior of those persons who comprise the group in which a social rule is alleged to exist must indicate that the rule is usually followed.
Consistent with what I take to be a distinguishing feature of Legal Positivism, I have maintained throughout this essay that it is possible to distinguish the structure of social rules and, hence, the structure of legal systems, from the uses to which social rules and laws are put.
www.utexas.edu /law/faculty/csilver/class/68Monist347.htm   (6419 words)

Perhaps the critics’ point is not that legal positivism is a morally evil doctrine in itself; the allegation may be that the evils that the critics complain about result when subscription to the positivist creed is combined with the absence of sufficiently developed democratic institutions and practices.
Some critics would insist that even if legal positivism may not be directly implicated in the enthronement of a dictatorial regime, it nonetheless help such regimes to consolidate and to go about executing their immoral objectives with relative ease, using the instrumentality of the judiciary.
Legal positivism is not antithetical to judicial activism.
www.africaresource.com /war/vol2.2/oladosu.html   (12100 words)

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Most Law and Courts scholars were taught that legal positivism is hostile to moral principles in the law.
Chapter 3 turns to the legal positivism of Christopher Langdell and Joseph Beale, who Sebok maintains brought the positivism of Austin and Bentham from England to the United States.
Henry Hart and Albert Sack's unpublished treatise THE LEGAL PROCESS--it finally was published in 1994, under the editorship of William Eskridge and Philip Frickey--is front and center in both chapters.
www.bsos.umd.edu /gvpt/lpbr/subpages/reviews/sebok.html   (857 words)

 Lecture 23: Legal Positivism
That a statute is legally binding does not settle the moral question of whether we ought (morally speaking) to obey or disobey the law.
Legal theory involves taking the "internal perspective" of one who accepts a given system as valid.
If we don't already understand what legal validity means, we can't understand their definition.
www.utexas.edu /courses/phl347/lectures/lec23.html   (558 words)

 Existence and merit of law
Legal positivism asserts that it is both possible and valuable to have a morally neutral descriptive theory of law.
It is important to note that Legal Positivism does not deny that moral and political criticism of legal systems is important.
It is not the case that ‘Natural Law asserts and Legal Positivism denies’ [9] any normative content to the law.
www.wischik.com /marcus/essay/lawmerit.html   (2360 words)

 THE MANY FACES OF LEGAL POSITIVISM   (Site not responding. Last check: 2007-11-06)
Among the claims of its critics are that positivism is descriptively and/or conceptually false, that it is trivial, that it is an amoral doctrine, that it is an immoral doctrine, and that it is fully compatible with the central claims of natural law theory.
The label ‘legal positivism’ is understood in so many different ways that it has become almost meaningless to speak of legal positivism without stating precisely the sense or meaning in which one takes that term, the kind of legal positivism one has in mind.
Neil MacCormick once characterised legal positivism ‘… minimally as insisting on the genuine distinction between description of a legal system as it is and normative evaluation of the law which is thus described.’(51) Nevertheless, positivists are fully aware that law is fundamentally a normative affair.
www.utpjournals.com /product/utlj/483/483_waluchow.html   (16714 words)

 Dworkin vs
Ronald Dworkin’s legal philosophy, which he calls the “Rights Thesis,” is set up as a contrast with legal positivism.
While Dworkin agrees that rules have their place in our legal system, and are sometimes all we need to decide a dispute, he believes that rules by themselves are not sufficient.
It differs from positivism because although positivism says one side may have the right to win if there is a clear rule governing the dispute, in many cases the judge has discretion to decide for either side, and his decision is not right or wrong, just an instance of a new rule being created.
www.eou.edu /~jjohnson/pap2example.htm   (958 words)

 Under The Sun: A Defense of Austinian Legal Positivism   (Site not responding. Last check: 2007-11-06)
How much weight one gives to the extra-legal ethical duty to obey laws is a question of ethics which is irrelevant to legal positivism.
People don't assert that abortion is really not legal; they agree that it is legal and assert that it shouldn't be.
People don't assert that marijuana use is really legal; they agree that it's illegal and assert that it shouldn't be.
www.bundy223.com /~andyb/blog/archives/000400.html   (1293 words)

 Mind: Inclusive Legal Positivism. - book reviews   (Site not responding. Last check: 2007-11-06)
Such a definition is prima facie at odds with legal positivism, which traditionally seeks to keep law and morality strictly separate--as John Austin famously put it, "the existence of law is one thing, its merit or demerit another".
Waluchow maintains, contra Dworkin, that legal theory must be based on some sort of pedigree or master criterion, such as the Hartian Rule of Recognition, by which we identify law.
At the very end of the book, he suggests that the scope of a legal rule need not extend to each and every plain meaning case, particularly where it suggests a result which is manifestly absurd, repugnant or unjust.
www.findarticles.com /p/articles/mi_m2346/is_n417_v105/ai_17972691   (1109 words)

 Open Directory - Society: Law: Legal Information: Legal Theory   (Site not responding. Last check: 2007-11-06)
Legal History and Philosophy - Quotes from important persons, texts and documents, in the area of legal history and philosophy.
Legal Information Institute - About...Jurisprudence - An overview of "jurisprudence," the philosophy of law, with additional resources on "critical legal studies" and "feminist jurisprudence."
The Nature of Law - Survey of theories on the conditions of legal validity including natural law theories and legal positivism, from the Stanford Encyclopedia of Philosophy.
dmoz.org /Society/Law/Legal_Information/Legal_Theory   (211 words)

 Thomas Hobbes and the Invented Tradition of Positivism by James Boyle
This is an essay about the legal theory of Thomas Hobbes and about the things that are revealed when one compares Hobbes's ideas with the main line of legal positivism.
The invented history of positivism turns out to be the process by which theorists sacrificed most of the meaning in their canonical texts to the maintenance of the definitional project.
And, because every legal argument is, in a sense, the wringing of political power out of the meanings of words, we cannot consign his message to the softly irrelevant fringe of academic jurisprudence.
www.law.duke.edu /boylesite/hobbes.htm   (16587 words)

 Amazon.co.uk: Books: The Argument from Injustice: A Reply to Legal Positivism   (Site not responding. Last check: 2007-11-06)
The legal positivist, insisting on the separation of the two, explicates the concept of law independently of morality.
While the conceptual argument alone is too limited to establish a sufficiently strong connection between law and morality, and the normative argument alone fails to address the nature of law, the two arguments together support a nonpositivistic concept of law, toppling legal positivism qua comprehensive theory of law.
The author arrives at a concept of law that systematically links classical elements of legal positivism - authoritative issuance and social efficacy - with the desideratum of nonpositivistic legal theory, correctness of content.
www.amazon.co.uk /exec/obidos/ASIN/0198259875   (790 words)

 Table of contents for Library of Congress control number 97052780   (Site not responding. Last check: 2007-11-06)
Table of contents for Legal positivism in American jurisprudence / Anthony J. Sebok.
Legal process and the shadow of positivism 5.
New legal positivism and the incorporation of morality.
www.loc.gov /catdir/toc/cam025/97052780.html   (94 words)

 The Autonomy of Law: Essays on Legal Positivism by George, Robert P. - ShopCBN
This collection of original papers from distinguished legal theorists offers a challenging assessment of the nature and viability of legal positivism, a branch of legal theory which continues to dominate contemporary legal theoretical debates.
These and other questions are addressed by the authors in this carefully edited collection, and it will be of interest to all lawyers and scholars interested in legal philosophy and legal theory.
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www.parable.com /cbn/item_0198267908.htm   (177 words)

 Amazon.ca: Books: The Autonomy Of Law: Essays on Legal Positivism   (Site not responding. Last check: 2007-11-06)
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He is a former Judicial Fellow at the Supreme Court of the United States and presidential Appointee to the United States Commission on Civil Rights
Top of Page : The Autonomy Of Law: Essays on Legal Positivism
www.amazon.ca /exec/obidos/ASIN/0198257864   (222 words)

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