Abstract
Why do jurists and officials consider certain norms/rules as legally binding? How is it possible for officials to insist that their role is not to question the political wisdom or substantive moral content of norms/rules? Why do lawyers and judges, to be more specific, observe from the sidelines, as it were, as if their norms/rules were impersonal and their decisions distanced?
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Reference
Sophods, Antigone,in The Three Theban Plays: Antigone, Oedipus the King, and Oedipus at Colonus, trans. Robert Fagles (New York: Penguin, 1982, 1984), line 825.
This association of legal authority with the personal virtues of a ruler continued even to early modern times, as one may observe in Machiavelli’s Prince and his Discourses. For Machiavelli, the virtu of the ruler combined with fortune or chance to ensure the obedience of the citizenry to the ruler of a city-state. Machiavelli’s sense of virtu, though, differed substantially from fifth century Athens for the ruler’s `goodness’ was measured in terms of his ability to remain in power in the city.
In the Apology (24c), Metetus accuses Socrates of doing “injustice by corrupting the young, and by not believing in the gods in whom the city believes, but in other daimonia that are novel. Four Texts on Socrates trans. Thomas G. West and Grace Starry West, intro. Thomas G. West (Ithaca: Cornell University Press, 1984; 1998 rev’d. ed.).
G.W.F. Hegel, The Phenomenology of Spirit, trans. A.V. Miller (Oxford: Oxford University Press, 1977; 1807), para. 198–201.
M. Cary, A History of Rome: Down to the Reign of Constantine (London: Macmillan, 1957; 2d ed.), 145–46.
The notion of a speech act in the context of legal discourse is best elaborated in Robert Alexy, A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification, trans. Ruth Adler and Neil MacCornrick (Oxford: Clarendon Press, 1989), 53–58, 104–07.
See generally Leonard Krieger, “Authority,” in Philip P. Weiner, Dictionary of the History of Ideas: Studies of Selected Pivotal Ideas, vol. 1 (New York: Charles Scribner’s Sons, 1968; 1973), 141–62.
Augustus (27 B.C.E.-14 C.E.) represented each sense of auctoritas: he acted as the public trustee of the Senate, the private counsellor of the people and the guardian trustee of the Commonwealth (pater patriae); secondly, his statements possessed the auctoritas of truth and; thirdly, he authored or created incomplete ideas in those statements.
Otto Gierke, Political Theories of the Middle Ages, trans. with intro. Frederic William Maitland (Beacon Hill/Boston: Beacon Press, 1900; 1958), 76–100.
See, e.g., Robert Summers, “The New Analytical Jurists,” in New York University Law Review41(1966): 861–96, 869; and `Legal Philosophy Today — An Introduction,’ in Summers ed., Essays in Legal Philosophy, vol. 1 (Berkeley: University of California Press, 1968), 1–21, 16: “it would be best in legal philosophy to drop the term ”positivist“ for it is now radically ambiguous and dominantly pejorative.” In “Beyond Positivism and Law,” Ota Weinberger writes that “[i]t is altogether questionable whether there even exists a class of characteristics common to all positivist theories.” The best that one can do is to offer a “family resemblance.” Neil MacCormick and Ota Weinberger, An Institutional Theory of Law (Dordrecht: Reidel, 1986), 111–26, 113. Also see Kent Greenawalt, `Too Thin and Too Rich: Distinguishing Features of Legal Positivism’ in Robert P. George, ed., The Autonomy of Law: Essays on Legal Positivism (Oxford: Clarendon Press, 1996): 1–29, 24: “If we could achieve recognition of some central truths and limitations of legal positivism, then perhaps we could reduce the confusion and misconceptions that attach to that label, and see more to clearly substantial issues about law and about courts that interpret law. Until that happy day arrives, we may do better to discuss issues on their own, not relying so much on labels that now mislead and irritate more than they clarify.”
Lon Fuller, The Law in Quest of Itself (Boston: Beacon Press, 1940), 46–7.
Hessel E. Yntema, “Jurisprudence on Parade,” in Michigan Law Review39(1941): 1154–1181, 1164. Also see Edgar Bodenheimer, “Analytical Positivism, Legal Realism, and the Future of Legal Method” in Prginia Law Review44(1958): 365–78, 365
Roscoe Pound, Jurisprudence 5 vols. (St Paul: West, 1959), vol. 1, 258.
Hans Kellen, The Pure Theory of Law, trans. Max Knight (Berkeley: University of California Press, 1967).
Hart, “Analytical Jurisprudence in Mid-Twentieth Century: A Reply to Professor Bodenheimer,” in University of Pennsylvania Law Review105(1957): 953–75, 955–56. Having said that, Hart also goes on to claim that “the time the student can afford to spend on jurisprudence is likely to be better spent on the close and careful analysis of fundamental legal notions and those lying on the boundary of a legal system than in assimilating what he can of other social disciplines.”
Frederick Schauer, “Positivism through Thick and Thin,” in ed. Brian Bix, Analyzing Law: New Essays in Legal Theory (Oxford: Oxford University Press, 1998), 65–78, at 70.
MacCormick, “Natural Law and the Separation of Law and Morals,” in ed. Robert P. George, Natural Law Theory: Contemporary Essays (Oxford: Clarendon Press, 1992), 105–33.
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See, e.g., Jules Coleman, “Second Thoughts and Other First Impressions,” in ed. Brian Bix, Analyzing Law: New Essays in Legal Theory (Oxford: Clarendon, 1988), 257–322; “Incorprationism, Conventionality and Practical Difference,” in Legal Theory4(1998): 381–425.
See, e.g., Joseph Raz, “Authority, Law and Morality,” in Ethics in the Public Domain (Oxford: Clarendon, 1994).
Austin, Lectures on Jurisprudence vol 2 (New York: Burt Franklin, 1970; reprint from Robert Campbell ed., London: John Murray, 1885, 5th ed. rev’d; originally published in 1861), Lecture 37, 337–38.
Joseph Raz, “The Nature of Law,” in Ethics in the Public Domain, 195–209; “Authority, Law and Morality.”
This notion of the `discovery’ of a rule is juxtaposed with the justification of a rule in Richard Wasserstrom, The Judicial Decision (Stanford: Stanford University Press, 1961). Raz makes a similar distinction between deliberation and a decision. See Raz in “Reasons for Action, Decisions and Norms” in ed. Joseph Raz, Practical Reasoning (Oxford: Oxford University Press, 1978), 128–43; and Ethics in the Public Domain.
Anthony J. Sebok, Legal Positivism in American Jurisprudence (Cambridge: Cambridge University Press, 1998).
See generally Joke Klein Kranenburg, “Legal Positivism Divided” in Current Legal Theory 15 (1997): 3–23.
Jules Coleman, “Authority and Reason” in ed. Robert P. George, Natural Law (Oxford: Clarendon Press, 1992), 287–319; and “Incorporationism, Conventionality, and the Practical Difference Thesis,” in Legal Theory4:381–425, at 407–12. However, in “Second Thoughts and other First Impressions” in ed. Brian Bix, Analyzing Law: New Essays in Legal Theory (Oxford: Clarendon Press, 1998), 257–322, at 266, Coleman writes that legal positivism claims that there must be one “logically possible legal system [structure]” where there is no ought value or moral worth which conditions the structure.
Joseph Raz, The Authority of Law, 95. Coleman, “Second Thoughts,” 261.
See William E. Conklin, Images of a Constitution (Toronto: University of Toronto Press, 1989).
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Conklin, W.E. (2001). The Tradition of Legal Positivism in Modern Legal Thought. In: The Invisible Origins of Legal Positivism. Law and Philosophy Library, vol 52. Springer, Dordrecht. https://doi.org/10.1007/978-94-010-0808-2_4
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