Judging Positivism

by Margaret Martin

Overview

Judging Positivism is a critical exploration of the method and substance of legal positivism. Margaret Martin is primarily concerned with the manner in which theorists who adopt the dominant positivist paradigm ask a limited set of questions and offer an equally limited set of answers, artificially circumscribing the field of legal philosophy in the process. The book focuses primarily but not exclusively on the writings of prominent legal positivist, Joseph Raz. Martin argues that Raz's theory has changed over time and that these changes have led to deep inconsistencies and incoherencies in his account. One re-occurring theme in the book is that Razian positivism collapses from within. In the process of defending his own position, Raz is led to support the views of many of his main rivals, namely, Ronald Dworkin, the legal realists and the normative positivists. The internal collapse of Razian positivism proves to be instructive. Promising paths of inquiry come into view and questions that have been suppressed or marginalised by positivists re-emerge ready for curious minds to reflect on anew. The broader vision of jurisprudential inquiry defended in this book re-connects philosophy with the work of practitioners and the worries of law's subjects, bringing into focus the relevance of legal philosophy for lawyers and laymen alike.

Product Details

ISBN-13:	9781849460996
Publisher:	Hart Publishing
Publication date:	09/01/2012
Pages:	198
Product dimensions:	6.14(w) x 9.21(h) x 0.78(d)

About the Author

Margaret Martin is an Associate Professor in the Faculty of Law at Western University. She completed her PhD in 2006 at the University of Cambridge. She also holds an MA in Philosophy and a BA Hons in Philosophy and English Literature from McMaster University and an MSL from the University of Toronto. She teaches Legal Philosophy, Constitutional Law and International Criminal Law.

Table of Contents

Preface vii

Acknowledgements ix

1 Setting the Stage: Practical Reason and Norms Reconsidered 1

I Practical Reason and Norms and Exclusionary Reasons 10

II Exclusionary Reasons and the Legal Sphere: Issues of Method and Substance 16

III Between Chaos and Order: Judges as Wielders of Our Collective Fate 18

IV Common Law Systems: A Counter-Example 23

2 Between Fact and Value 27

I The Sources Thesis Defined and Defended 29

II Raz's Rule-Plus-Exception Model 33

III Casting Law in a New Light 36

IV Identifying Rules: A Herculean Task 40

V Between Fact and Value 43

3 The Perils of Positivism: Why Raz becomes a Realist 47

I Law's Autonomy Considered and Reconsidered 49

II Legal Rights and Legal Realism 54

III Back to the Settled Gore 58

IV Law's Claim to Authority; Raz's Way Out? 62

V A Story about Law and Order Retold 68

4 Raz's The Morality of Freedom: Two Models of Authority 71

I Raz's Focal Concept of Authority 74

II The Analogy of the Arbitrator: From Consent to Normal Justification 79

III Pre-emption versus Normal Justification: Seeking Coherence 81

IV Methodology: The Source of the Tension? 89

V Co-ordination Problems and Razian Authority 93

5 Law as Public Practical Reasons Revisited 96

I The Sources Thesis: Defined and Redefined 99

II Sources, Certainty, and Public Practical Reasons 101

III The Weak Autonomy Thesis 108

IV The Sources Thesis and Interpretation: Nuance or Nuisance? 110

V Why Reason like Raz? 112

VI Law and Order: Some Reflections on Method 117

6 The Path Not Taken 124

I Hart and the Internal Aspect of Rules 126

II A little Help from Holmes 128

III Between Chaos and Legality: The Sources of Certainty 135

IV Content Matters 141

V Is Law Merely Conventional? 148

7 The Raz-Postema Debate Deconstructed 151

Law as Public Practical Reason: Raz versus Postema 152

A Law's Ultimate Aspiration is Justice 155

B Law's Overarching Function 156

C The Autonomy Thesis 158

D The Limited Domain Thesis 161

E The Argument from Co-operation 162

F Methodology and Law's Importance 164

G The Relationship between the Pre-emption Thesis and the Sources Thesis 165

H The Certainty Thesis 168

I The Sources Thesis 169

J The Pre-emption Thesis 172

Index 181