Essays On Legal Positivism

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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.

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.

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.For Hobbes, legal positivism represented a decisive break with the intellectual tradition of common law scholarship which could no longer provide a satisfactory account of political authority.Positivism began, therefore, as an explanation of the basis of law’s authority within wider theories of social order: legal rules came to be seen as possessing authority not as the specific outcomes of broader moral precepts, but because they represent definitive, posited solutions to the problems of collective living.Hobbes clearly perceived our stock of existing knowledge, both scientific and artistic, as evaporating in the lack of communication and reflection afforded by the belligerent conditions of the state of nature.being nothing else, but conception caused by Speech.” This dependence of conceptual thought upon language, reminiscent as it is of modern analytic philosophy, must be understood as putting beyond reach all forms of direct intuition to moral truths.Such an interpretation would place Hobbes’s thought in much closer proximity to Grotius than is normally accepted.However, this seems to me much too slender a basis to sustain such a reading, and I believe the intended import of the quoted passage is to highlight the That is, the requirement that our social behaviour conform to the standards set out by the sovereign is the outcome both of the general prudential concerns embodied in the laws of nature and of the specific natural law obligation that men “performe their Covenants made” note 14 at 80.It is easy to establish such a claim: Hobbes’s thought lacks any notion corresponding to the modern one of criteria of validity established by complex practices of recognition.Hence, if the propositions (1) and (2) are definitive of legal positivism, Hobbes is not a legal positivist.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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