Essays On Legal Positivism

Essays On Legal Positivism-49
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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.

My own view, which I shall not defend here, is that the third law is in fact dependent for its force upon the second, which Hobbes equates to the Biblical injunction: “Whatsoever you require that others should do to you, that do ye to them. It is often debated whether Hobbes regarded such a state as a genuine historical phase in the history of human society, or as a hypothetical state into which society can slide at any time.

Yet whether or not such a state is conceived as having actually occurred prior to the establishment of civil society is independent of the possibility of its occurring given the conditions of discord Hobbes describes: the potency of that threat is precisely why Hobbes believed we should be willing to give up our freedom of private judgment and submit to the authoritative pronouncements of the sovereign.

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.This essay traces the developments which led to the narrowly analytical view of legal positivism, and argues that positivism is much better understood as a series of peculiarly potent reflections on the rule of law: Hobbes’s answers to the questions of social order and the authority of law are often highly unsatisfactory; but it is his questions, rather than those of the modern positivists, which are most worth asking, and which should drive the legal philosopher.To send this article to your Kindle, first ensure [email protected] added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Note you can select to send to either the @free.or @variations.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.Kramer’s point is worth quoting, however, since it aptly highlights a further obstacle to one central plank of Hobbes’s positivism: “the only route by which words gain meanings,” Kramer observes, “is the route of dialogues and collective practices.” Thus, “[s]hared interpretations of signifiers must involve the sharing of manifold arrangements and contexts, which yield the quite repetitive interaction whereby people can know that their construals of signifiers have meshed with other people’s understandings thereof.” Kramer, Indeed, as noted above, the scope of the natural right shrinks away virtually altogether as the obligations imposed by the natural law fully begin to bite in civil society.The individual does retain limited rights to disobey the sovereign where his or her life is directly threatened, although it is open to debate whether such right-invoking acts constitute bounds upon the legitimate capacity of the sovereign to determine the law for his subjects: for a discussion see Martinich, at 11 & 30.Nor can a man any more live, whose Desires are at an end, than he, whose Senses and Imagination are at a stand.” Still more starkly: “I put for a generall inclination of all mankind, a perpetuall and restlesse desire of Power after power, that ceaseth only in Death.” Doubt has been ex Pressed whether Hobbes would have conceded such a possibility.Textual evidence suggests it is most unlikely, given Hobbes’s epistemological premises, that broad agreement over abstracts could be forthcoming; however, in Part II of the present paper I shall argue that some level of agreement is possible in the state of nature; for the contrary view see Quentin Skinner has forcefully argued that the Hobbesian laws of nature are tied to his account of the virtues as much as to reason: see his Reason and Rhetoric in the Philosophy of Hobbes (Cambridge: Cambridge University Press, 1996) at 342. Hobbes goes on to remark that, since laws are a form of command, “yet if we consider the same Theoremes, as delivered in the word of God, that by right commandeth all things; then are they properly called Lawes.” Hobbes continues “[a man should] be contented with so much liberty against other men, as he would allow other men against himselfe.” Given the context of this remark, and further observations made by Hobbes on the necessity within any civic grouping of taking a stand on distributive questions, it is possible to interpret Hobbes as claiming the existence of a pattern of entitlements preceding the formation of civic legal institutions.Hobbes clearly perceived our stock of existing knowledge, both scientific and artistic, as evaporating in the lack of communication and reflection afforded by the belligerent conditions of the state of nature.being nothing else, but conception caused by Speech.” This dependence of conceptual thought upon language, reminiscent as it is of modern analytic philosophy, must be understood as putting beyond reach all forms of direct intuition to moral truths.

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