Legal Positivism in a Global and Transnational Age: Introduction

Siliquini-Cinelli, Luca

doi:10.1007/978-3-030-24705-8_1

Cited by 2 publications

(1 citation statement)

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“…Now, leaving aside the fact that, if legal positivism merely identifies foreign laws, it cannot fabricate them (cf. Siliquini-Cinelli, 2019), 29 what is worth noting is that the openness towards culture that informs Tamanaha's (2017) realistic socio-legal positivism appears to contradict Legrand's reconstruction.…”

Section: The Philosophical Problem Of Legrand's ‘Sensitive Epistemology’mentioning

confidence: 99%

Experience vs. knowledge in comparative law: critical notes on Pierre Legrand's ‘sensitive epistemology’

Siliquini-Cinelli¹

2020

International Journal of Law in Context

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This paper expounds some critical reflections on Pierre Legrand's recent account of James Gordley's and James Whitman's comparative methodologies. Pushing his unconventional writing style to the limits and labelling Gordley's ‘positivist’ and Whitman's ‘cultural’ comparative law, Legrand's piece appears to be taking the first step towards a new, more sensitive phase for the comparative study of law and legal cultures. The paper argues that, contrary to what might be first thought, Legrand's ‘sensitive epistemology’ cannot act as a gateway to cultural otherness. This is because it is wholly in line with the constructivist objectification of life that characterises the study and practice of law both within and outside the comparative-law dimension.

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Section: The Philosophical Problem Of Legrand's ‘Sensitive Epistemology’mentioning

confidence: 99%

Experience vs. knowledge in comparative law: critical notes on Pierre Legrand's ‘sensitive epistemology’

Siliquini-Cinelli¹

2020

International Journal of Law in Context

Self Cite

View full text Add to dashboard Cite

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Hans J. Morgenthau’s Critique of Legal Positivism: Politics, Justice, and Ethics in International Law

Chas

2023

Jus Cogens

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Modern jurisprudence has typically been presented as a debate between legal positivism and natural law. Though the demise of legal positivism has been touted despite its pre-eminence in past decades, it is clear that there remains a vigorous debate surrounding this theory. It is noteworthy that Hans J. Morgenthau’s legal thought and critique of legal positivism have remained unexplored in the context of this debate. Largely forgotten, his legal thought answers questions that lie at the heart of the natural law and legal positivist debate. It showcases his deeply nuanced understanding of legal and political theory and contains a powerful and insightful commentary on the fundamental problems faced by international law. Building on existing literature, this paper unearths Morgenthau’s critique of legal positivism. It does this by re-examining his works, which address the question of whether moral considerations are relevant to determining the content of the law in force. It brings his legal thought to light, which highlights the artificiality of the division between law and morality and offers a nuanced analysis of problems inherent in international law. Ultimately, the paper challenges the claim that the law can be determined without resorting to moral judgement and shows how Morgenthau’s insights remain relevant to legal positivism and natural law debates today.

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Legal Positivism in a Global and Transnational Age: Introduction

Cited by 2 publications

References 99 publications

Experience vs. knowledge in comparative law: critical notes on Pierre Legrand's ‘sensitive epistemology’

Experience vs. knowledge in comparative law: critical notes on Pierre Legrand's ‘sensitive epistemology’

Hans J. Morgenthau’s Critique of Legal Positivism: Politics, Justice, and Ethics in International Law

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