Essays On Legal Positivism

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.

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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.

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.

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.Passages from dealing with the relationship between “law” and “right” are strongly reminiscent of similar, albeit less sophisticated, passages in the writings of some of Selden’s closest followers. Murphy’s essay is perhaps the most interesting of these accounts.His argument is, roughly, that Hobbes should not be counted as a positivist since (contrary to the interpretation of Jean Hampton and others) he does not subscribe to the following theses (and particularly not the second), taken to be hallmarks of legal positivism: (1) the pedigree of a norm alone determines whether it is legally valid; (2) the validity of a legal enactment in no way depends on its moral content.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.The Hobbesian figure of the philosopher ultimately wins the round by a dazzling exercise of rhetorical skill, finally getting the lawyer to admit that what constrains men to the text of a statute is “authority” Pufendorf had indeed observed that “one’s obligation in matters enjoined by authority is limited to what the authority intended ....But a man cannot tell another man’s will except from acts and signs apparent to his senses.Yet mathematical propositions also require interpretative consensus if they are to be imbued with meaning (even if the strictness of semantic rules ensures a high degree of precision in the way such terms are wielded and interpreted).note 51 at 16; also at 279-80: “The uncritical belief that if a general term (e.g.Then enter the ‘name’ part of your Kindle email address below. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi.‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

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