Autonomy essay law legal positivism

Autonomy essay law legal positivism

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The Autonomy of Law: Essays on Legal Positivism / Edition 1

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His solution resembles Kelsen's in its emphasis on the normative foundations autonomy essay law legal positivism legal systems, but Hart rejects Kelsen's transcendentalist, Kantian view of authority in favour of an empirical, Weberian one. These and other questions are addressed by the authors of this carefully edited collection, xutonomy will be of interest to all lawyers and scholars interested in legal philosophy.

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The Autonomy of Law: Essays on Legal Positivism

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First, it is not plausible to hold that the merits are relevant to a judicial decision only when the sources make it so. A theory that insists on the facticity of law seems to contribute little to our understanding that law has important functions in making human life go well, that the rule of law is a prized ideal, and that the positivissm and autonomy essay law legal positivism of law is highly moralized.

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Legal Positivism

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To say that the existence of law depends on facts and not on its merits is a thesis about the relation among laws, facts, and merits, and not otherwise a thesis about the individual relata.

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This book presents a broad account of the present knowledge of the history and outlines the system of Islamic law.

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Fivewincs marked it as to-read Apr 18,

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Since it is well known that there are convincing arguments for the ineliminability of values in the social sciences, those autonomyy have taken legak board Quinian holisms, Kuhnian paradigms, or Foucauldian autonomy essay law legal positivism, may suppose that positivism should be rejected a priorias promising something that no theory can deliver. While Finnis and Fuller's views are cambridge tsa essay compatible with the positivist thesis, the same cannot be said of Ronald Dworkin's important works Dworkin and

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On his view, law is characterized by a basic form and basic norm.

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And to say that the existence of law depends on social facts does not commit one to thinking that it is a good thing that this is so.

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Open access to the SEP is made possible by a world-wide funding initiative.

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Refresh and try again. Oxford University Press

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Every description is value-laden. The Concept of Law2 nd ed.

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Among the philosophically literate another, more intelligible, misunderstanding may interfere.

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Exclusive positivists offer three main arguments for stopping at social sources. The objection embraces the error it seeks to avoid.

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It is beyond doubt that moral and political considerations bear on legal philosophy. Shawn rated it liked it Jun 07,

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What Are You Talking About? According to Bentham and Austin, law is a phenomenon of large societies with a sovereign:

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The Truth in Legal Positivism.

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For criticism see Perry, Waluchow, Colemanand Himma. One possibility he neglects is that it doesn't.

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Should legal theorists maintain a conceptual separation of law and morality? The same holds of other social norms, including the norms of foreign legal systems.

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McCormick Professor of Jurisprudence at Princeton University, where he lectures on constitutional interpretation, civil liberties and philosophy of law.

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It may clarify the philosophical stakes in legal positivism by comparing it to a number of other theses with which it is sometimes wrongly identified, and not only by its opponents.

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There are many difficulties with this, not least of which is the fact that if we are willing to tolerate the basic norm as a solution it is not clear why we thought there was a problem in the first place.

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Blair Major is currently reading it Dec 11, What sounds like moral reasoning in the courts is sometimes really source-based reasoning.

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The fact that they claim this partly determines what it is to be a Pope, even if it is a fiction, and even the Pope himself doubts its truth. Legal positivism does not aspire to answer these questions, though its claim that legap existence and content of law depends only on social facts does give them shape.

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These and other questions are addressed by the authors of this carefully edited collection, which will be of interest to all lawyers and scholars interested in legal philosophy. Legal Positivism in Philosophy of Law.

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The Existence and Sources of Law 3. Raz, Joseph The Morality of Freedom.

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In this way, all descriptions express choices about what is salient or significant, and positifism in turn cannot be understood without reference to values. This book traces, in outline, the development of the principal features of English legal institutions and doctrines from Anglo-Saxon times to the present.

If the imperativalists' picture of the political system was pyramidal power, Hart's is more like Weber's rational bureaucracy.

It is an important feature of Hart's account that the rule of recognition is an official custom, and not a standard necessarily shared by the broader community. Development and Influence 2. The courts are not indifferent between, on the one hand, people not stealing and, on the other, stealing and suffering the sanctions.

Raz, Joseph The Morality of Freedom. Constitutional cases thus raise no philosophical issue not already present in ordinary statutory interpretation, where inclusive positivists seem content with the theory of judicial discretion.

The most important argument to this conclusion is due to Raz , pp. Ordinary subjects' contribution to the existence of law may therefore amount to no more than passive compliance. The theory is monistic: Authors Affiliations are at time of print publication.

Parliament, and on that basis Canadian law and English law should be parts of a single legal system, rooted in one basic norm: Essays on Legal Positivism About us.

To what extent is the law adequately described as autonomous? Obedience is a normative concept. Whatever virtues inhere in or follow from clear, consistent, prospective, and open practices can be found not only in law but in all other social practices with those features, including custom and positive morality. Law is not neutral between victim and murderer or between owner and thief.

The rule of recognition is the ultimate criterion or set of criteria of legal validity. The first and most important is that it captures and systematizes distinctions we regularly make and that we have good reason to continue to make. Subscriber Login Email Address. Hart and Joseph Raz among whom there are clear lines of influence, but also important contrasts.

Law stands continuously exposed to demands for justification, and that too shapes its nature and role in our lives and culture. These and other questions are addressed by 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 issues have been at the heart of the greatest constitutional controversies in American history.

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