Suchergebnisse

Abstract Taking as its starting point María Cristina Redondo's book Positivismo jurídico .interno", this article proposes an alternative conception of normativist legal positivism. The article argues that legal theory can be neutral to the extent that it is intersubjective and transparent regarding its own metaphysical premises. On the one hand, thus, the article aims to shed light on the role of metaphysics and common sense in the construction of the concept of law. On the other hand, it seeks to make more transparent the ethical-political choices that constitute legal discourses, including theoretical ones. To pursue these goals the article first analyzes Redondo's theses on the ontology / epistemology distinction and the possibility of objective knowledge, and advances the idea that inter-subjectivity, and not objectivity, should be the appropriate criterion for normativist legal positivism. Second, the article examines the role of normativity in normativist legal positivism, focusing on the metaphysical nature of the thesis that law belongs to the fields of normativity and practical reason. The following sections then discuss reductionist and anti-reductionist conceptions of legal "entities" (norms, normative statements, propositions, and beliefs) and the theory of legal sources. The final section addresses the question of the axiological neutrality of legal theory and discusses the possibility of describing participants' internal point of view without committing to existing legal practice(s).

Chapter 1: Introduction: Legal Positivism in a Global and Transnational Age -- Part I: Legal Positivism, the State, and International Legal Theory -- Chapter 2: About the Impossibility of Absolute State Sovereignty. The Modern Era and the Early Legal Positivist Claim -- Chapter 3: Taking Legal Positivism beyond the State: Finding Secondary Rules? -- Chapter 4: New International Legal Positivism: Formalism by Another Name? -- Part II: Legal Positivism and Social Practices -- Chapter 5: Legal Positivism as Tekhnē: Postnational Normative Ontology and Positivist Effectual Temporality -- Chapter 6: Barking Up the Wrong Tree? Systems Theory and the 'Social Positivisation' of Human Rights -- Chapter 7: Before and After Legal Positivity: Peremptory Norms in Global and Transnational Social Practice -- Part III: Beyond Legal Positivism? -- Chapter 8: Positivism and the Peace/power Dialectic: Feminist Reflections in a Transnational Age -- Chapter 9: Beyond Legal Positivism in Transnational Law -- Chapter 10: How Post-Positivism Sheds Light on Treaty Interpretation: Celebrating the VCLT Rule of Interpretation -- Chapter 11: Responsibility of Corporations in International Law: Positivism and Transnationalism Revisited

In contemporary American jurisprudence, there are many different
legal-theoretical courses, orientations and legal schools. In this work, the
author tries to analyze jusnaturalism and legal positivism. The reason for
commitment for these two legal theories the author finds in the fact that
they are actually modern forms of theories with a rich philosophical
tradition. The paper argues that the jusnaturalism is the oldest
philosophical tradition. Legal positivism was developed in opposition to
jusnaturalism in the mid-19th century. The author points out that
contemporary American jurisprudence marks the conflict between jusnaturalism
and legal positivism. The main reason for their disagreement is the question
of the relationship between law and morality. The paper analyzes the
differences between the modern version of legal positivism and jusnaturalism
and their classical theories. It is noticeable that the modern versions are
purified and softened versions of the classic theories. The author concludes
that a kind of mitigation of positivist-jusnaturalism dispute has already
begun. Finally, the author allows that in the further development of
contemporary American jurisprudence a significant convergence of legal
positivism and jusnaturalism can reasonably be expected.