The Dead End of Legal Positivism
and the Retrieval of its Raison D'Etre
(45.) Legal positivism
is the "view of law which advocates the study of actual legal systems, and eschews the search for independent justifications in terms of *natural law: i.e.
And similarly, when legal positivism
equates law with the order of a sovereign (Austin), (39) the combination of primary and secondary rules (Hart), (40) a systematic, hierarchical normative order (Kelsen), (41) or a nested set of plans (Shapiro), (42) nothing in any of those systems is inconsistent with the observation that law frequently tracks the customs and social norms of a community.
"inclusive" legal positivism
. (231) To see why Raz imposes
The argument from justice, or how not to reply to legal positivism
. In: PAVLAKOS, George (Ed.).
spread of legal positivism
. Any law in Russia at that time had the
(20) In this way, Habermas attempts to situate himself between legal positivism
and natural law.
The first point tackles the normative justifications of legal positivism
and the normative priority of legal positivism
over moral law based in "human reason".
"Getting Real or Staying Positive-Legal Realism(s), Legal Positivism
and the Prospects of Naturalism in Jurisprudence".
or "pragmatism" is ultimately amoral and dangerous--whether exemplified by the antebellum South or its subsequent Jim Crow segregation, or Nazism, or South African apartheid, or communist "people's republics," or in the abortion license of Roe v.
Law theories have been fiercely challenged by the legal positivism
Since such an examination is at odds with both social science and legal positivism
, Kratochwil calls for a different interdisciplinary epistemology.