Essays On Legal Positivism

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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.

For Hobbes, legal positivism represented a decisive break with the intellectual tradition of common law scholarship which could no longer provide a satisfactory account of political authority.

Positivism began, therefore, as an explanation of the basis of law’s authority within wider theories of social order: legal rules came to be seen as possessing authority not as the specific outcomes of broader moral precepts, but because they represent definitive, posited solutions to the problems of collective living.

What Hobbes subscribes to is something approximating to the following proposition: (3) law must consist in ascer-tainable standards in the form of authoritative, ex Pressly laid-down (posited) rules if law is to make any contribution to social order in a world of moral doubt.

My argument in this essay is that proposition (3) constitutes both the “origin” of positivist thinking (in Hobbes) essence: the concern with “conceptual connections” between law and morality is, by and large, an unwelcome distraction from the important issues which have traditionally defined the core of the pos-itivists’ thinking. J 271 at 280ff The Hobbesian response to the crisis of reason was but one way of revising traditional assumptions concerning the basis of legal authority.

The natural lawyers, such as Grotius, responded to it by articulating a conception of natural right which was compatible with diverse forms of social arrangement whilst humanists explored renewed significance in the Roman division of the public and private realms, treating scholarly activity and moral theorising as lying broadly within the latter domain.

(greatest Good,) as is spoken of in the Books of the old Morall Philosophers.


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