The Hand of Midas: When Concepts Turn Legal or Deflating the Hart-Dworkin Debate

Poscher, Ralf

doi:10.2139/ssrn.1121128

Cited by 3 publications

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“…Instances of this line of argument include Mazzarese 2002;Green 2003, sec. 3;Priel 2005, 682;Poscher 2009;Guastini 2011, 197-200. determined by the law, by legal considerations only). But this is implausible.…”

Section: The Real Challenge For Legal Positivism: Accounting For Matementioning

confidence: 99%

“…The conceptual turn in the positivistic debate has been considered-even by those legal theorists who are broadly sympathetic to the positivist project-as exceedingly subtle, dry, and remote from the normative and empirical concerns that drove legal positivism when it was founded. 8 Such discomfort has led some positivists to try to make sense of the internecine positivistic debate by proposing a (more) precise definition of some of the jurisprudential concepts at stake, 9 while others have tried to explain away the apparent disagreement between positivists over the meaning of the separability thesis (Priel 2005;Poscher 2009), and still others have ended up repudiating the separability thesis (Coleman 2007).…”

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Positivism, Legal Validity, and the Separation of Law and Morals

Pino¹

2012

SSRN Journal

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The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between "standard positivism" and "post-Hartian positivism." Then I will consider various kinds of relations between law and morality that are worthy of jurisprudential interest, and explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should be taken into account, and what kind of such relations are indeed of no import at all. The upshot of this analysis consists in highlighting the distinction between two different dimensions of legal validity (formal validity and material validity respectively), and in pointing out that the positivist separability thesis can apply to formal validity only. On the other hand, when the ascertainment of material validity is at stake, some form of moral reasoning may well be involved (here and now, it is necessarily involved). The essay concludes with some brief remarks on the persisting importance of the positivist jurisprudential project.

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Section: The Real Challenge For Legal Positivism: Accounting For Matementioning

confidence: 99%

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confidence: 99%

Positivism, Legal Validity, and the Separation of Law and Morals

Pino¹

2012

SSRN Journal

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“…24 24 For a more elaborate explanation of this idea see Poscher 2008; for a similar argument cf. Priel 2005, 675–96. …”

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confidence: 96%

Insights, Errors and Self‐Misconceptions of the Theory of Principles

Poscher¹

2009

Ratio Juris

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The theory of principles is multifaceted. Its initial expression contained an important argument against positivist theories of adjudication. As a legal theory, it fails in its effort to claim a structural difference between rules and principles. It also fails as a methodological theory that reduces adjudication to subsumption or balancing. It misunderstands itself when it is conceived as a doctrinal theory especially of fundamental rights. Its most promising aspect could be its contribution to a more comprehensive theory of legal argumentation.

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“…The conceptual turn in the positivistic debate has been considered—even by those legal theorists who are broadly sympathetic to the positivist project—as exceedingly subtle, dry, and remote from the normative and empirical concerns that drove legal positivism when it was founded . Such discomfort has led some positivists to try to make sense of the internecine positivistic debate by proposing a (more) precise definition of some of the jurisprudential concepts at stake, while others have tried to explain away the apparent disagreement between positivists over the meaning of the separability thesis (Priel ; Poscher ), and still others have ended up repudiating the separability thesis (Coleman ).…”

mentioning

confidence: 99%

“…Instances of this line of argument include Mazzarese ; Green , sec. 3; Priel , 682; Poscher ; Guastini , 197–200.…”

mentioning

confidence: 99%

Positivism, Legal Validity, and the Separation of Law and Morals

Pino

2014

Ratio Juris

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The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between “standard positivism” and “post-Hartian positivism.” Then I will consider various kinds of relations between law and morality that are worthy of jurisprudential interest, and explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should be taken into account, and what kind of such relations are indeed of no import at all. The upshot of this analysis consists in highlighting the distinction between two different dimensions of legal validity (formal validity and material validity respectively), and in pointing out that the positivist separability thesis can apply to formal validity only. On the other hand, when the ascertainment of material validity is at stake, some form of moral reasoning may well be involved (here and now, it is necessarily involved). The essay concludes with some brief remarks on the persisting importance of the positivist jurisprudential project

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The Hand of Midas: When Concepts Turn Legal or Deflating the Hart-Dworkin Debate

Cited by 3 publications

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Positivism, Legal Validity, and the Separation of Law and Morals

Positivism, Legal Validity, and the Separation of Law and Morals

Insights, Errors and Self‐Misconceptions of the Theory of Principles

Positivism, Legal Validity, and the Separation of Law and Morals

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