Read complete books and articles on: Legal Positivism

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13 of the Best Books and Articles on: Legal Positivism

as selected by Questia librarians

1.

Inclusive Legal Positivism » Read Now
by W. J. Waluchow. 290 pgs.

Collections: Philosophy, Entire Library

This book develops a general philosophical theory about the nature of law and its relationship with morality called inclusive legal positivism. In addition to articulating and defending his own version of legal positivism, which is a refinement and development of the views of H.L.A. Hart as...
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This book develops a general philosophical theory about the nature of law and its relationship with morality called inclusive legal positivism. In addition to articulating and defending his own version of legal positivism, which is a refinement and development of the views of H.L.A. Hart as expressed in his classic book The Concept of Law, the author clarifies the terms of current jurisprudential debates about the nature of law. These debates are often clouded by failures to appreciate that different theorists are offering different kinds of theories and attempting to answer different questions. The clarity of Waluchow's work will help to remove the confusion often present in jurisprudential debate.
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2.

The Autonomy of Law: Essays on Legal Positivism » Read Now
by Robert P. George. 339 pgs.

Collections: Philosophy, Entire Library

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. To what extent is the law adequately described as...
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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. To what extent is the law adequately described as autonomous? Should law claim autonomy? These and other questions are addressed by the authors in this carefully edited collection, and it will be of interest to all lawyers and scholars interested in legal philosophy and legal theory.
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3.

Norm and Nature: The Movements of Legal Thought » Read Now
by Roger A. Shiner. 356 pgs.

Collections: Philosophy, Entire Library

Is the nature of law to be formal procedure or to embody substantive value? This work deals with the traditional conflict in legal philosophy between positivistic and anti-positivistic theories of law. It examines the conflict with respect to seven central issues in legal philosophy--law as a reason...
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Is the nature of law to be formal procedure or to embody substantive value? This work deals with the traditional conflict in legal philosophy between positivistic and anti-positivistic theories of law. It examines the conflict with respect to seven central issues in legal philosophy--law as a reason for action, law and authority, the internal point of view to law, the acceptance of law, discretion and principle, interpretation and semantics, and law and the common good. This work argues that although this conflict cannot be resolved, the true nature of law is revealed--not obscured--by this perennial situation.
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4.

Legal Theory at the End of the Millennium ("Legal Positivism and Deliberative Democracy" begins on p. 65) » Read Now
by M. D. A. Freeman. 576 pgs.

Collections: Entire Library

...Dialectic of Might and Right: Legal Positivisms and Constitutional Change 37 Legal Positivism and Deliberative Democracy...are wanted in life or that his legal positivism...
5.

The Authority of Law: Essays on Law and Morality (Chap. 3 "Legal Positivism and the Sources of Law") » Read Now
by Joseph Raz. 291 pgs.

Collections: Philosophy, Entire Library

...of moral content. Essay 3 Legal Positivism and the Sources of Law explains...approach, generally known as legal positivism, which regards law as created...emerges from the...
6.

Realistic Socio-Legal Theory: Pragmatism and a Social Theory of Law (Chap. 5 "A Social Theory of Law by Comparison to Legal Positivism") » Read Now
by Brian Z. Tamanaha. 280 pgs.

Collections: Philosophy, Entire Library

Combining philosophical pargmatism with a methodological foundation, Tamanaha formulates a framework for a realistic approach to socio-legal theory. The strengths of this approach are contrasted with that of the major schools of socio-legal theory by application to core issues in this area. Thus...
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Combining philosophical pargmatism with a methodological foundation, Tamanaha formulates a framework for a realistic approach to socio-legal theory. The strengths of this approach are contrasted with that of the major schools of socio-legal theory by application to core issues in this area. Thus Tamanaha explores the problematic state of socio-legal studies, the relationship between behaviour and meaning, the notion of legal ideology, the problem of indeterminacy in rule following and application, and the structure of judicial decision making. These issues are tackled in a clear and concise fashion while articulating a social theory of law which draws equally from legal theory and socio-legal theory.
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7.

The Moral Criticism of Law (Chap. II "Law and Morals -- Natural Law and Legal Positivist Theories") » Read Now
by David A. J. Richards. 278 pgs.

Collections: Philosophy, Entire Library

...Interpretation 10 Legal Positivism 11 The Natural Law-Legal Positivism Debate Today 23...controversy between natural law and legal positivism. The discussion here will...
8.

World Politics and International Law (Chap. 2 "The Real Origins of International Legal Positivism" and Chap. 3 "The Achievements of International Legal Positivism") » Read Now
by Francis Anthony Boyle. 372 pgs.

Collections: Entire Library

This work presents a critical look at the management of U.S. foreign policy. The author also suggests that states could advance their long term national interests through organization and international law.
9.

Normativity and Norms: Critical Perspectives on Kelsenian Themes (Chap. 7 "Validity and the Conflict between Legal Positivism and Natural Law") » Read Now
by Stanley L. Paulson, Bonnie Litschewski Paulson, Michael Sherberg. 627 pgs.

Collections: Philosophy, Entire Library

This remarkable collection contains some of the very best work on themes developed by Hans Kelsen, regarded by many as the most influential legal philosopher of the twentieth century. The volume addresses in rich detail the topic where debate on Kelsen's work has been liveliest: 'normativity' as...
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This remarkable collection contains some of the very best work on themes developed by Hans Kelsen, regarded by many as the most influential legal philosopher of the twentieth century. The volume addresses in rich detail the topic where debate on Kelsen's work has been liveliest: 'normativity' as Kelsen's alternative to both traditional legal positivism and natural law theory. The book boasts a truly international list of contributors, with authors from Europe, North and South America, and Australia - a dozen countries in all.
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10.

The Pure Theory as Ideal Type: Defending Kelsen on the Basis of Weberian Methodology, in Yale Law Journal » Read Now
by Dhananjai Shivakumar. 32 pgs.

Collections: Philosophy, Entire Library

...manner. In fact, Kelsens brand of legal positivism requires a new methodological...action, Kelsen underscores his legal positivism: Every legal norm has an...
11.

Jurisprudence: Theory and Context (Chap. Five "H. L. A. Hart and Legal Positivism") » Read Now
by Brian Bix. 238 pgs.

Collections: Philosophy, Entire Library
12.

Law and Disagreement ("Legal Positivism" begins on p. 93, and "Legal Positivism and Moral Judgment" begins on p. 165) » Read Now
by Jeremy Waldron. 334 pgs.

Collections: Philosophy, Entire Library

When people disagree about justice and about individual rights, how should political decisions be made among them? How should they decide about issues like tax policy, welfare provision, criminal procedure, discrimination law, hate speech, pornography, political dissent and the limits of religious...
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When people disagree about justice and about individual rights, how should political decisions be made among them? How should they decide about issues like tax policy, welfare provision, criminal procedure, discrimination law, hate speech, pornography, political dissent and the limits of religious toleration? The most familiar answer is that these decisions should be made democratically, by majority voting among the people or their representatives. Often, however, this answer is qualified by adding ' providing that the majority decision does not violate individual rights.' In this book Jeremy Waldron has revisited and thoroughly revised thirteen of his most recent essays. He argues that the familiar answer is correct, but that the qualification about individual rights is incoherent. If rights are the very things we disagree about, then we are quarrelling precisely about what that qualification should amount to. At best, what it means is that disagreements about rights should be resolved by some other procedure, for example, by majority voting, not among the people or their representatives, but among judges in a court. This proposal - although initially attractive - seems much less agreeable when we consider that the judges too disagree about rights, and they disagree about them along exactly the same lines as the citizens. This book offers a comprehensive critique of the idea of the judicial review of legislation. The author argues that a belief in rights is not the same as a commitment to a Bill of Rights. He shows the flaws and difficulties in many common defences of the 'democratic' character of judicial review. And he argues for an alternative approach to the problem of disagreement: when disagreements about rights arise, the respectful way to resolve them is by decision-making among the right-holders on a basis that reflects an equal respect for them as the holders of views about rights. This respect for ordinary right-holders, he argues, has been sadly lacking in the theories of justice, rights, and constitutionalism put forward in recent years by philosophers such as John Rawls and Donald Dworkin. But the book is not only about judicial review. The first tranche of essays is devoted to a theory of legislation, a theory which highlights the size, the scale and the diversity of modern legislative assemblies. Although legislation is often denigrated as a source of law, Waldron seeks to restore its tattered dignity. He deprecates the tendency to disparage legislatures and argues that such disparagement is often a way of bolstering the legitimacy of the courts, as if we had to transform our parliaments into something like the American Congress to justify importing American-style judicial reviews. Law and Disagreement redresses the balances in modern jurisprudence. It presents legislation by a representative assembly as a form of law making which is especially apt for a society whose members disagree with one another about fundamental issues of principle, for it is a form of law making that does not attempt to conceal the fact that our decisions are made and claim their authority in the midst of, not in spite of, our political and moral disagreements. This timely rights-based defence of majoritarian legislation will be welcomed by scholars of legal and political philosophy throughout the world.
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13.

Philosophy of Law: An Introduction to Jurisprudence ("Legal Positivism" begins on p. 19) » Read Now
by Jeffrie G. Murphy, Jules L. Coleman. 240 pgs.

Collections: Philosophy, Entire Library