Essays On Legal Positivism

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Analytical positivism, by contrast, centres upon the possibility of descriptive neutrality: an essential property of law, it is felt, is that ascertainment of its content does not necessarily depend upon moral assessments of the purpose of value of legal rules.

Such an understanding, it is contended, is only very indirectly related to the traditional concerns of the legal philosopher, and hence marginal to a rich and detailed view of law’s nature.

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Essays On Legal Positivism

If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your thinker systematically to explore and develop characteristically positivist ideas, and because his position embodied in many ways a more thoroughgoing conventionalism than Hobbes was later to adopt.Such an interpretation would place Hobbes’s thought in much closer proximity to Grotius than is normally accepted.However, this seems to me much too slender a basis to sustain such a reading, and I believe the intended import of the quoted passage is to highlight the That is, the requirement that our social behaviour conform to the standards set out by the sovereign is the outcome both of the general prudential concerns embodied in the laws of nature and of the specific natural law obligation that men “performe their Covenants made” note 14 at 80.Matthew Kramer views the retarded nature of social interaction as likewise precluding the possibility of our interpretations of the laws of nature converging to a degree that would facilitate negotiation of the social contract.Of course, the existence of contentious interpretations depends upon the possibility of rational thought of the kind I have argued is unavailable given Hobbes’s premises.Legal positivism is often described as the view that there is no necessary relationship between law and moral values.Such an understanding of positivism, this essay argues, is both unfruitful and far removed from the concerns of the figure most often associated with the origins of the positivist tradition, Thomas Hobbes.What Hobbes subscribes to is something approximating to the following proposition: (3) law must consist in ascer-tainable standards in the form of authoritative, ex Pressly laid-down (posited) rules if law is to make any contribution to social order in a world of moral doubt.My argument in this essay is that proposition (3) constitutes both the “origin” of positivist thinking (in Hobbes) essence: the concern with “conceptual connections” between law and morality is, by and large, an unwelcome distraction from the important issues which have traditionally defined the core of the pos-itivists’ thinking. J 271 at 280ff The Hobbesian response to the crisis of reason was but one way of revising traditional assumptions concerning the basis of legal authority.The Hobbesian figure of the philosopher ultimately wins the round by a dazzling exercise of rhetorical skill, finally getting the lawyer to admit that what constrains men to the text of a statute is “authority” Pufendorf had indeed observed that “one’s obligation in matters enjoined by authority is limited to what the authority intended ....But a man cannot tell another man’s will except from acts and signs apparent to his senses.


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