State Law And Legal Positivism

There was a truly global revolution that reflected a Great Divide between ancient and new legal regimes. The volume emphasizes its depth and scale and explores the phenomenon in the contexts of Morocco, Egypt, India, the Ottoman empire, China, and Japan.

The concept of law lies at the heart of our social and political life. Legal philosophy, or jurisprudence, explores the notion of law and its role in society, illuminating its meaning and its relation to the universal questions of justice, rights, and morality. In this Very Short Introduction Raymond Wacks analyses the nature and purpose of the legal system, and the practice by courts, lawyers, and judges. Wacks reveals the intriguing and challenging nature of legal philosophy with clarity and enthusiasm, providing an enlightening guide to the central questions of legal theory. In this revised edition Wacks makes a number of updates including new material on legal realism, changes to the approach to the analysis of law and legal theory, and updates to historical and anthropological jurisprudence. ABOUT THE SERIES: The Very Short Introductions series from Oxford University Press contains hundreds of titles in almost every subject area. These pocket-sized books are the perfect way to get ahead in a new subject quickly. Our expert authors combine facts, analysis, perspective, new ideas, and enthusiasm to make interesting and challenging topics highly readable.

A theme of growing importance in both the law and philosophy and socio-legal literature is how regulatory dynamics can be identified (that is, conceptualised and operationalised) and normative expectations met in an age when transnational actors operate on a global plane and in increasingly fragmented and transformative contexts. A reconsideration of established theories and axiomatic findings on regulatory phenomena is an essential part of this discourse. There is indeed an urgent need for discontinuity regarding what we (think we) know about, among other things, law, legality, sovereignty and political legitimacy, power relations, institutional design and development, and pluralist dynamics of ordering under processes of globalisation and transnationalism. Making an important contribution to the scholarly debate on the subject, this volume features original and much-needed essays of theoretical and applied legal philosophy as well as socio-legal accounts that reflect on whether legal positivism has anything to offer to this intellectual enterprise. This is done by discussing whether global and transnational cultural, socio-political, economic, and juridical challenges as well as processes of diversification, fragmentation, and transformation (significantly, de-formalisation) reinforce or weaken legal positivists’ assumptions, claims, and methods. The themes covered include, but are not limited to, absolute and limited state sovereignty; the ‘new international legal positivism’; Hartian legal positivism and the ‘normative positivist’ account; the relationship between modern secularisation, social conventionalism, and meta-ontological issues of temporality in postnational jurisprudence; the social positivisation of human rights; the formation and content of jus cogens norms; feminist critique; the global and transnational migration of principles of justice and morality; the Vienna Convention on the Law of Treaties rule of interpretation; and the responsibility of transnational corporations.

Reprint of the first edition. This classic work by the important Austrian jurist is the fullest exposition of his enormously influential pure theory of law, which includes a theory of the state. It also has an extensive appendix that discusses the pure theory in comparison with the law of nature, positivism, historical natural law, metaphysical dualism and scientific-critical philosophy. "The scope of the work is truly universal. It never loses itself in vague generalities or in unconnected fragments of thought. On the contrary, precision in the formulation of details and rigorous system are characteristic features of the exposition: only a mind fully concentrated upon that logical structure can possibly follow Kelsen's penetrating analysis. Such a mind will not shrink from the effort necessary for acquainting itself with...the pure theory of law in its more general aspects, and will then pass over to the theory of the state which ends up with a carefully worked out theory of international law." Julius Kraft, American Journal of International Law 40 (1946):496.

Conklin's thesis is that the tradition of modern legal positivism, beginning with Thomas Hobbes, postulated different senses of the invisible as the authorising origin of humanly posited laws. Conklin re-reads the tradition by privileging how the canons share a particular understanding of legal language as written. Leading philosophers who have espoused the tenets of the tradition have assumed that legal language is written and that the authorising origin of humanly posited rules/norms is inaccessible to the written legal language. Conklin's re-reading of the tradition teases out how each of these leading philosophers has postulated that the authorising origin of humanly posited laws is an unanalysable externality to the written language of the legal structure. As such, the authorising origin of posited rules/norms is inaccessible or invisible to their written language. What is this authorising origin? Different forms include an originary author, an a priori concept, and an immediacy of bonding between person and laws. In each case the origin is unwritten in the sense of being inaccessible to the authoritative texts written by the officials of civil institutions of the sovereign state. Conklin sets his thesis in the context of the legal theory of the polis and the pre-polis of Greek tribes. The author claims that the problem is that the tradition of legal positivism of a modern sovereign state excises the experiential, or bodily, meanings from the written language of the posited rules/norms, thereby forgetting the very pre-legal authorising origin of the posited norms that each philosopher admits as offering the finality that legal reasoning demands if it is to be authoritative.

The book brings together 33 state-of-the-art chapters on the import and the pros and cons of legal positivism.

This collection of essays from legal philosophers offers an assessment of the nature and viability of legal positivism. It addresses questions such as: to what extent is the law adequately described as autonomous?; and should legal theorists maintain a conceptual separation of law and morality?.