Inclusive Legal Positivism,Legal Interpretation,and Value‐Judgments

In this paper I put forward some arguments in defence of inclusive legal positivism. The general thesis that I defend is that inclusive positivism represents a more fruitful and interesting research program than that proposed by exclusive positivism. I introduce two arguments connected with legal interpretation in favour of my thesis. However, my opinion is that inclusive positivism does not sufficiently succeed in estranging itself from the more traditional legal positivist conceptions. This is the case, for instance, with regard to the value‐freedom principle, which is commonly accepted by inclusive positivist scholars. In contrast with this approach, I try to show, in the concluding section, how a constructivistic version of inclusive positivism could legitimately acknowledge the presence of value‐judgments in the cognitive activities of jurists and legal theorists.     

Law and Morality: A Critical Relation*

Abstract. The article deals with the difference between some forms of legal positivism. It is argued that, even in continental legal systems which are typically “rule bound,” there is some space left for principles in the legal system. The author tries to explain how this space can be filled and what methods should be used by a judge to do so.     

The Use of Unwritten Legal Principles by Courts*

Abstract. I argue that one can distinguish two types of unwritten legal principles as applied by courts (in Europe). On the one hand, what are called “structural principles,” which are induced, or at least pretended to be induced, from the written law. On the other hand, what are called “ideological principles,” which are not induced from the actual legal system, but refer to current dominant beliefs in society as to morals, politics or other non legal ideologies. It is argued that the distinction between structural legal principles and ideological legal principles could be an important element for the elaboration of a legal principle theory, as both these types of principles meet a different need and play a different role in legal practice. Structural legal principles primarily meet the need for a new ius commune, in order to achieve the coherence and the completeness of the legal system, whereas ideological legal principles, just like the human rights, meet a revived demand for an ethical framework for the law.     

The Dual Nature of Law

The argument of this article is that the dual‐nature thesis is not only capable of solving the problem of legal positivism, but also addresses all fundamental questions of law. Examples are the relation between deliberative democracy and democracy qua decision‐making procedure along the lines of the majority principle, the connection between human rights as moral rights and constitutional rights as positive rights, the relation between constitutional review qua ideal representation of the people and parliamentary legislation, the commitment of legal argumentation to both authoritative and non‐authoritative reasons, and the distinction between rules as expressing a real “ought” and principles as expressing its ideal counterpart. All of this underscores the point that the dual nature of law is the single most essential feature of law.     

Realism about the Nature of Law

Legal realism comes in two main versions, namely American legal realism and Scandinavian legal realism. In this article, I shall be concerned with the Scandinavian realists, who were naturalists and non‐cognitivists, and who maintained that conceptual analysis (in a fairly broad sense) is a central task of legal philosophers, and that such analysis must proceed in a naturalist, anti‐metaphysical spirit. Specifically, I want to consider the commitment to ontological naturalism and non‐cognitivism on the part of the Scandinavians and its implications for their view of the nature of law. I argue (i) that the Scandinavians differ from legal positivists in that they reject the idea that there are legal relations, that is, legal entities and properties, and to varying degrees defend the view that law is a matter of human behavior rather than legal norms, and (ii) that they do not and cannot accept the idea that there is a ‘world of the ought’ in Kelsen's sense. I also argue, more specifically, (iii) that the objection to non‐naturalist theories raised by the Scandinavians—that there is and can be no connection between the higher realm of norms and values (the ‘world of the ought’) and the world of time and space—is convincing, and (iv) that Kelsen's introduction of a so‐called modally indifferent substrate does nothing to undermine this objection. In addition, I argue (v) that the Scandinavians can account for the existence of legal relations that do not presuppose the existence of morally binding legal norms by embracing conventionalism about the existence of the sources of law, while pointing out that in doing so they would also be abandoning their legal realism for legal positivism. Finally, I argue (vi) that the implications for legal scholarship of the realist emphasis on human behavior instead of legal norms is not well explained by the realists and appear to amount to little more than a preference for teleological interpretation of legal norms.     

Positivism,Legal Validity,and the Separation of Law and Morals

The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between “standard positivism” and “post‐Hartian positivism.” Then I will consider various kinds of relations between law and morality that are worthy of jurisprudential interest, and explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should be taken into account, and what kind of such relations are indeed of no import at all. The upshot of this analysis consists in highlighting the distinction between two different dimensions of legal validity (formal validity and material validity respectively), and in pointing out that the positivist separability thesis can apply to formal validity only. On the other hand, when the ascertainment of material validity is at stake, some form of moral reasoning may well be involved (here and now, it is necessarily involved). The essay concludes with some brief remarks on the persisting importance of the positivist jurisprudential project.     

Moral Principles and Legal Validity

Two recent high‐quality articles, including one in this journal, have challenged the Inclusivist and Incorporationist varieties of legal positivism. David Lefkowitz and Michael Giudice, writing from perspectives heavily influenced by the work of Joseph Raz, have endeavored—in sophisticated and interestingly distinct ways—to vindicate Raz's contention that moral principles are never among the law‐validating criteria in any legal system nor among the laws that are applied as binding bases for adjudicative and administrative decisions in such a system. The present article responds to their defenses of Raz's Exclusive Legal Positivism.     

Theoretical Disagreement,Legal Positivism,and Interpretation

Ronald Dworkin famously argued that legal positivism is a defective account of law because it has no account of Theoretical Disagreement. In this article I argue that legal positivism—as advanced by H.L.A. Hart—does not need an account of Theoretical Disagreement. Legal positivism does, however, need a plausible account of interpretation in law. I provide such an account in this article.     

David Dyzenhaus and the Holy Grail

Abstract
In his book Hard Cases in Wicked Legal Systems David Dyzenhaus aims to provide a cogent refutation of legal positivism, and thus to settle a very old dispute in jurisprudence. His claim is that the consequences for practice and for morality if judges adopt positivist ideas in a wicked legal system are unacceptable. He discusses the South African legal system as a case in point. I argue that this claim is not secured. Dyzenhaus has three arguments for his view. The first is that positivism cannot account for legal principles, and legal principles are the key source of morally acceptable adjudication. I show that his argument does not go through for sophisticated positivist accounts of "principles" such as those of J. Raz and D. N. MacCormick. Dyzenhaus's second argument claims to find a pragmatic contradiction in positivism, between the belief in judicial discretion and the belief in a commitment to legislative sources as binding fact. I argue that there is no such commitment in a form that supports Dyzenhaus's theory. His final argument is that wicked legal systems are contrary to the very idea of law and legality. I argue that a strong doctrine of deference to legislative authority cannot be bad in itself: It can only be bad relative to a certain content to legislation. Thus Dyzenhaus's claim begs the question against positivism.     

From Public Sociology to Public Philosophy: Lessons for Law and Society

The late Philip Selznick's final book, A Humanist Science, examines the role of values and ideals in the social sciences, including the study of law and society. Throughout his academic career, Selznick was committed to what he called “legal naturalism,” a sociological version of the natural-law perspective, while his critics continue to adhere to various forms of positivism. But the age-old opposition between natural law and legal positivism today may be giving way to the quest for public sociology—a sociology that promotes public reflection on significant social issues and thus functions as a moral and political force. A Humanist Science ends with a strong plea for public philosophy. Public philosophy overlaps with public sociology but is a much stronger concept. Selznick's message of public philosophy may be another of his enduring contributions to the field of law and society.     

The Sheffield School and Discourse Theory: Divergences and Similarities in Legal Idealism/Anti‐Positivism*

Abstract. When first I began this paper, I envisaged it as a fairly straightforward exercise in comparison between the Sheffield School’s and Discourse Theory’s varieties of legal idealism or anti‐positivism (these terms being synonymous for the types of theory that contest positivism’s separation thesis, that is, the contention that there is no necessary conceptual connection between law and morality). One obvious distinction, for example, is between the moral substance at the heart of these respective theories: the Sheffield School’s legal theory being founded on Alan Gewirth’s Principle of Generic Consistency, and Alexy’s theory focusing on Radbruch’s intolerable degree of injustice. However, the more I thought about the two respective theories, the more interested I became in one particular issue: the denial of the separation thesis that constitutes legal idealism. Here, I present a paper which is not so much concerned with the substance of two different types of legal idealism or anti‐positivism, but which focuses on the question of whether and in what way either or both of the theories can correctly be characterised as legal idealist or anti‐positivist. I focus in this paper on two works in particular: Deryck Beyleveld and Roger Brownsword’s Law as a Moral Judgment (1994), and Robert Alexy’s The Argument from Injustice (2002).     

Beyond Inclusive Legal Positivism*

In this essay, I characterize the original intervention that became Inclusive Legal Positivism, defend it against a range of powerful objections, explain its contribution to jurisprudence, and display its limitations and its modest jurisprudential significance. I also show how in its original formulations ILP depends on three notions that are either mistaken or inessential to law: the separability thesis, the rule of recognition, and the idea of criteria of legality. The first is false and is in event inessential to legal positivism. The second is inessential to legal positivism. The third is likely inessential to law. I then characterize the central claim of ILP in a way that relies on none of these: ILP is the claim that necessarily social facts determine the determinants of legal content. I show that ILP so conceived leaves the central debates in law largely untouched. I suggest how the most fundamental of these—the question of the normativity of law—at least can be usefully addressed. The essay closes by suggesting that even though one can distinguish the social from the normative dimensions of law, a theory of the nature of law is necessarily an account of the relationship between the two: It is a theory either of the difference that certain distinctive social facts make in normative space, or it is an account of the distinctive normative difference that law makes, and the social and other facts that are necessary to explain that difference. One can distinguish between but one cannot separate the social from the normative aspects of legality.     

Legislative Intentions and Counterfactu-als: Or,What One Can Still Learn from Dworkin's Critique of Legal Positivism

Riggs v. Palmer has become famous since Dworkin used it to show that legal positivism is defective. The debate over the merits of Dworkin's claims is still very lively. Yet not enough attention has been paid to the fact that the content of the statute at issue in Riggs was given by the counterfactual intention of the legislature. According to arguments from legislative intent, a judicial decision is justified if it is based on the lawmaker's intention. But can legislative intentions be determined counterfactually? More generally, what are the discursive commitments undertaken by a lawyer or a judge, in an exchange of legal reasons, when using this interpretive methodology? This paper addresses these issues considering, in particular, David Lewis's “resemblance” condition and “relevant similarity” between possible worlds in the evaluation of counterfactual statements. The analysis sheds some new light on the debate on theoretical disagreements and shows that Dworkin's conception of law as an argumentative practice is not necessarily at odds with legal positivism. It rather allows us to look at it under a better light.     

Neil MacCormick's Second Thoughts on Legal Reasoning and Legal Theory. A Defence of the Original View

This paper offers a diachronic reconstruction of MacCormick's theory of law and legal argumentation: In particular, two related points will be highlighted in which the difference between the perspective upheld in Legal Reasoning and Legal Theory and the later writings is particularly marked. The first point concerns MacCormick's gradual break with legal positivism, and more specifically the thesis that the implicit pretension to justice of law proves legal positivism false in all its different versions. The second point concerns MacCormick's acceptance of the one‐right‐answer thesis and the consequent thinning of the differences between MacCormick's theory of legal reasoning and that of Ronald Dworkin and of Robert Alexy. The intent, however, is not only to describe this change in MacCormick's thought, but also to attempt a defence of the original view that we find in Legal Reasoning and Legal Theory.     

Schmitt's Critique of Kelsenian Normativism*

Abstract. The aim of this paper is to underline the relevance of Schmitt's critique of Kelsenian normativism in the context of today's debate about the status of legal positivism. Schmitt's underlining of the limits which a certain kind of positivism imposes upon itself highlights a contemporary issue about what legal theory should aim at when accounting for the normative dimension of law. Schmitt's ultimate failure to take up the theoretical challenge he himself raised (with its well‐known consequences) is deemed to illustrate—negatively—the importance of providing a plausible account of the social practices which bring law into existence.     

探寻法律效力的来源——分析实证法学之理论述评

以探求法律效力来源问题在实证分析法学中的解答为目标,从哲学上的休谟难题开始阐发,试图通过对选取的几位分析法学家的理论分析,最终理解实证分析法学对于该问题的解答,并试图阐明:法律效力的来源应当是来自于法律体系的内部,即来自于法律自身。法律与道德不可分离的论断只会掩盖问题的实质,只有厘定法律的界限,才能有助于我们更加清晰地理解法律效力的来源,最终真正理解法律以及法律体系的内涵。     

On the Wrong Track: Andrei Marmor on Legal Positivism,Interpretation, and Easy Cases

Abstract. The paper argues for the following points: (1) Marmor's own understanding of “legal positivism” is different from the understanding defended, e.g., by Herbert Hart and Norberto Bobbio, and apparently misleads him into the wrong track of a theoretical inversion; (2) Marmor's two‐stages model of (legal) interpretation—the understanding‐interpretion model—provides no support for Marmor's own positivistic theory of law; (3) Marmor's concept of interpretation is at odds both with the basic tenets of Hartian and Continental methodological legal positivism, on the one hand, and with the actual practice of legal interpretation in the Western world, on the other hand; (4) Marmor's concept of an easy case is likewise objectionable.