Pub Date : 2021-01-31DOI: 10.1017/9781108636377.013
Matthew H Kramer
{"title":"The Legal Positivism of H. L. A. Hart","authors":"Matthew H Kramer","doi":"10.1017/9781108636377.013","DOIUrl":"https://doi.org/10.1017/9781108636377.013","url":null,"abstract":"","PeriodicalId":131205,"journal":{"name":"The Cambridge Companion to Legal Positivism","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131211187","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-31DOI: 10.1017/9781108636377.002
L. Green
{"title":"Positivism, Realism and Sources of Law","authors":"L. Green","doi":"10.1017/9781108636377.002","DOIUrl":"https://doi.org/10.1017/9781108636377.002","url":null,"abstract":"","PeriodicalId":131205,"journal":{"name":"The Cambridge Companion to Legal Positivism","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132583846","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
For positivists, law ultimately depends solely on social facts about a community’s legal practices. This is a metaphysical thesis about the nature of law. But most positivists — including Scott Shapiro, Joseph Raz, and H.L.A. Hart — reject a semantic thesis, according to which statements about the law are solely descriptions of those social facts. The semantic thesis, they argue, is unable to account for those legal statements, commonly using normative language, that Hart calls “internal.” Some argue that internal legal statements are not (or not solely) descriptions of social facts because they express one’s acceptance of conformity with legal practices. In response to difficulties with this expressivist approach (including the so-called Frege-Geach problem), Raz offers a detailed alternative, according to which they describe moral facts that would exist from the legal point of view, that is, on the assumption that there are always moral reasons for conformity to legal practices. Raz’s approach, although avoiding the Frege-Geach problem, has its own difficulties. I argue for a much simpler reason for positivists to reject the semantic thesis. Most positivists are assignment positivists, not reduction positivists. Reduction positivists believe that a legal system and its laws are reducible to social facts about a community’s legal practices, the way a traffic jam is reducible to facts about its constituent cars. For assignment positivists, by contrast, a legal system and its laws are abstract objects, not social entities. But these philosophers remain positivist, for they think that the grounds for assigning certain of these objects to a community — such that they are the legal system and laws of that community — are ultimately solely social facts about the community’s legal practices. Consider the following analogy. Many philosophers consider a language to be an abstract object. The fact that “Le chat est sur le tapis” means that the cat is on the mat in French is not a social fact concerning French linguistic practices but is instead a necessary truth concerning the abstract object that is French. Nevertheless, these philosophers believe that the grounds for assigning that abstract object to the French community are solely social facts about that community. It is a contingent fact that the French speak French rather than, say, Esperanto. That they speak French depends solely upon social facts concerning French linguistic practices. By analogy, assignment positivists should reject the semantic thesis for the simple reason that internal legal statements describe necessary truths about the abstract objects that are a legal system and its laws. This approach, which was probably the one adopted by Hart himself, overcomes the problems with expressivism — in particular, the Frege-Geach problem — while avoiding the difficulties with Raz’s approach.
对于实证主义者来说，法律最终完全取决于一个社区法律实践的社会事实。这是一篇关于法律本质的形而上学论文。但大多数实证主义者——包括斯科特·夏皮罗、约瑟夫·拉兹和H.L.A.哈特——都反对语义命题，即关于法律的陈述仅仅是对那些社会事实的描述。他们认为，语义命题无法解释那些通常使用规范语言的法律陈述，哈特称之为“内部”。一些人认为，内部法律陈述不是(或不仅仅是)对社会事实的描述，因为它们表达了一个人对符合法律惯例的接受。为了回应这种表现主义方法的困难(包括所谓的Frege-Geach问题)，Raz提供了一个详细的替代方案，根据该方案，他们描述了从法律角度存在的道德事实，也就是说，假设总是存在符合法律实践的道德原因。拉兹的方法虽然避免了Frege-Geach问题，但也有其自身的困难。我认为实证主义者拒绝语义命题的理由要简单得多。大多数实证主义者是分配实证主义者，而不是还原实证主义者。还原实证主义者认为，一个法律体系及其法律可以还原为一个社区法律实践的社会事实，就像交通堵塞可以还原为其组成车辆的事实一样。相反，对于分配实证主义者来说，法律体系及其法律是抽象的对象，而不是社会实体。但这些哲学家仍然是实证主义者，因为他们认为，将某些对象分配给一个社区的依据——比如它们是该社区的法律体系和法律——最终仅仅是关于该社区法律实践的社会事实。考虑下面的类比。许多哲学家认为语言是一种抽象的东西。" Le chat est sur Le tapis "在法语中意思是猫在垫子上，这一事实不是关于法语语言实践的社会事实，而是关于法语这个抽象对象的必然真理。然而，这些哲学家认为，将这个抽象的对象分配给法国社会的理由仅仅是关于这个社会的社会事实。法国人说法语而不说世界语，这是一个偶然的事实。他们说法语完全取决于与法语语言实践有关的社会事实。通过类比，赋值实证主义者应该拒绝语义命题，理由很简单，即内部法律陈述描述了作为法律体系及其法律的抽象对象的必要真理。这种方法，很可能是哈特自己采用的方法，克服了表现主义的问题——特别是弗雷格-吉奇问题——同时避免了拉兹方法的困难。
{"title":"The Semantic Thesis in Legal Positivism","authors":"Michael S. Green","doi":"10.2139/SSRN.3878279","DOIUrl":"https://doi.org/10.2139/SSRN.3878279","url":null,"abstract":"For positivists, law ultimately depends solely on social facts about a community’s legal practices. This is a metaphysical thesis about the nature of law. But most positivists — including Scott Shapiro, Joseph Raz, and H.L.A. Hart — reject a semantic thesis, according to which statements about the law are solely descriptions of those social facts. The semantic thesis, they argue, is unable to account for those legal statements, commonly using normative language, that Hart calls “internal.” \u0000 \u0000Some argue that internal legal statements are not (or not solely) descriptions of social facts because they express one’s acceptance of conformity with legal practices. In response to difficulties with this expressivist approach (including the so-called Frege-Geach problem), Raz offers a detailed alternative, according to which they describe moral facts that would exist from the legal point of view, that is, on the assumption that there are always moral reasons for conformity to legal practices. Raz’s approach, although avoiding the Frege-Geach problem, has its own difficulties. \u0000 \u0000I argue for a much simpler reason for positivists to reject the semantic thesis. Most positivists are assignment positivists, not reduction positivists. Reduction positivists believe that a legal system and its laws are reducible to social facts about a community’s legal practices, the way a traffic jam is reducible to facts about its constituent cars. For assignment positivists, by contrast, a legal system and its laws are abstract objects, not social entities. But these philosophers remain positivist, for they think that the grounds for assigning certain of these objects to a community — such that they are the legal system and laws of that community — are ultimately solely social facts about the community’s legal practices. \u0000 \u0000Consider the following analogy. Many philosophers consider a language to be an abstract object. The fact that “Le chat est sur le tapis” means that the cat is on the mat in French is not a social fact concerning French linguistic practices but is instead a necessary truth concerning the abstract object that is French. Nevertheless, these philosophers believe that the grounds for assigning that abstract object to the French community are solely social facts about that community. It is a contingent fact that the French speak French rather than, say, Esperanto. That they speak French depends solely upon social facts concerning French linguistic practices. \u0000 \u0000By analogy, assignment positivists should reject the semantic thesis for the simple reason that internal legal statements describe necessary truths about the abstract objects that are a legal system and its laws. This approach, which was probably the one adopted by Hart himself, overcomes the problems with expressivism — in particular, the Frege-Geach problem — while avoiding the difficulties with Raz’s approach.","PeriodicalId":131205,"journal":{"name":"The Cambridge Companion to Legal Positivism","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130129945","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-31DOI: 10.1017/9781108636377.017
Stefano Bertea
{"title":"Social-Practice Legal Positivism and the Normativity Thesis","authors":"Stefano Bertea","doi":"10.1017/9781108636377.017","DOIUrl":"https://doi.org/10.1017/9781108636377.017","url":null,"abstract":"","PeriodicalId":131205,"journal":{"name":"The Cambridge Companion to Legal Positivism","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124592649","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-31DOI: 10.1017/9781108636377.009
P. Schofield
H. L. A. Hart is generally recognised as the most influential twentiethcentury exponent of the doctrine of legal positivism. According to Hart, Jeremy Bentham (1748–1832), the philosopher and reformer, ‘opened the long positivist tradition in English jurisprudence’. Stephen Perry points out that Hart’s legal positivism contains two doctrines, namely substantive and methodological legal positivism, though Hart himself did not explicitly distinguish them. The former consists in the claim that there is no necessary connection between morality and the content of law and the latter in the claim that there is no necessary connection between morality and legal theory. Hart in effect attributed both doctrines to Benthamwhen referring to ‘Bentham’s sharp severance . . . between law as it is and law as it ought to be and his insistence that the foundations of a legal system are properly described in the morally neutral terms of a general habit of obedience’. Bentham’s view that there was no necessary connection between law and morality (his ‘sharp severance . . . between law as it is and law as it ought to be’) and his description of a legal system in ‘morally neutral terms’ were equivalent to Hart’s substantive and methodological doctrines respectively. Hart, moreover, indicated that Bentham’s methodological legal positivism had been subservient to his substantive legal positivism: ‘[Bentham] insisted on a precise, morally neutral vocabulary for use in the discussion of law and politics as part of a larger concern to sharpen men’s awareness . . . of the distinction between what is and what ought to be.’
{"title":"Jeremy Bentham and the Origins of Legal Positivism","authors":"P. Schofield","doi":"10.1017/9781108636377.009","DOIUrl":"https://doi.org/10.1017/9781108636377.009","url":null,"abstract":"H. L. A. Hart is generally recognised as the most influential twentiethcentury exponent of the doctrine of legal positivism. According to Hart, Jeremy Bentham (1748–1832), the philosopher and reformer, ‘opened the long positivist tradition in English jurisprudence’. Stephen Perry points out that Hart’s legal positivism contains two doctrines, namely substantive and methodological legal positivism, though Hart himself did not explicitly distinguish them. The former consists in the claim that there is no necessary connection between morality and the content of law and the latter in the claim that there is no necessary connection between morality and legal theory. Hart in effect attributed both doctrines to Benthamwhen referring to ‘Bentham’s sharp severance . . . between law as it is and law as it ought to be and his insistence that the foundations of a legal system are properly described in the morally neutral terms of a general habit of obedience’. Bentham’s view that there was no necessary connection between law and morality (his ‘sharp severance . . . between law as it is and law as it ought to be’) and his description of a legal system in ‘morally neutral terms’ were equivalent to Hart’s substantive and methodological doctrines respectively. Hart, moreover, indicated that Bentham’s methodological legal positivism had been subservient to his substantive legal positivism: ‘[Bentham] insisted on a precise, morally neutral vocabulary for use in the discussion of law and politics as part of a larger concern to sharpen men’s awareness . . . of the distinction between what is and what ought to be.’","PeriodicalId":131205,"journal":{"name":"The Cambridge Companion to Legal Positivism","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125868389","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-01-20DOI: 10.1017/9781108636377.030
Veronica Rodriguez-Blanco
Finnis, tells us, that the participant of the legal practice, e.g. the citizen, the judge, the lawyer, are engaged with the law and are interested in distinguishing between a good and a not so good norm, between a just directive and unjust directive, between a rational court-decision and a non-rational court decision. Hart’s internal point of view refuses to make further distinctions between the peripheral and central cases of law and this brings instability to the concept. Hart’s internal point of view as unstable can be traced to a more fundamental criticism, i.e. Hart’s internal point of view cannot be used to understand the point of human actions and therefore we cannot rely on Hart’s internal point of view to identify significance differences that any actor in the field can make. In the ‘methodology’ literature, this argument on instability is overlooked and its premises has not been carefully examined. In this chapter, I will try to show that the idea that the internal point of view is unstable is both key to understand the limits of Hart’s legal theory and shed further light on the view that law should be conceived in terms of a central or focal case.
{"title":"Tracing Finnis’s Criticism of Hart’s Internal Point of View: Instability and the ‘Point’ of Human Action in Law","authors":"Veronica Rodriguez-Blanco","doi":"10.1017/9781108636377.030","DOIUrl":"https://doi.org/10.1017/9781108636377.030","url":null,"abstract":"Finnis, tells us, that the participant of the legal practice, e.g. the citizen, the judge, the lawyer, are engaged with the law and are interested in distinguishing between a good and a not so good norm, between a just directive and unjust directive, between a rational court-decision and a non-rational court decision. Hart’s internal point of view refuses to make further distinctions between the peripheral and central cases of law and this brings instability to the concept. Hart’s internal point of view as unstable can be traced to a more fundamental criticism, i.e. Hart’s internal point of view cannot be used to understand the point of human actions and therefore we cannot rely on Hart’s internal point of view to identify significance differences that any actor in the field can make. In the ‘methodology’ literature, this argument on instability is overlooked and its premises has not been carefully examined. In this chapter, I will try to show that the idea that the internal point of view is unstable is both key to understand the limits of Hart’s legal theory and shed further light on the view that law should be conceived in terms of a central or focal case.","PeriodicalId":131205,"journal":{"name":"The Cambridge Companion to Legal Positivism","volume":"199 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115014704","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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