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Erie and the Irrelevance of Legal Positivism
Virginia Law Review, 1998Conventional wisdom holds that there is a connection between (a) the jurisprudential commitment to legal positivism expressed in Erie R.R. v. Tompkins, and (b) Erie's holding that the common law powers of federal courts exercised in Swift v. Tyson are unconstitutional. In this essay we analyze and challenge this conventional wisdom.
Goldsmith, Jack L., Walt, Steven
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Are Legal Positivism and the Interest Theory of Rights Compatible?
Social Science Research Network, 2019The Whanganui River has recently been declared a legal person and a right-holder according to New Zealand legislation. However, many theorists propounding the interest theory of rights, such as Matthew Kramer and Joseph Raz, would deny that rivers can ...
V. Kurki
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Legal Theory, 2006
Many contemporary legal positivists have argued that legal theory is evaluative because it requires the theorist to make judgments of importance. At the same time they argue that it is possible to know “what the law is” without resort to evaluative considerations.
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Many contemporary legal positivists have argued that legal theory is evaluative because it requires the theorist to make judgments of importance. At the same time they argue that it is possible to know “what the law is” without resort to evaluative considerations.
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Legal Realism and Legal Positivism Reconsidered
Ethics, 2001Abstract This chapter challenges two widespread views about the relationship between the jurisprudential theories known as ‘Legal Realism’ and ‘Legal Positivism’. The first is that the two doctrines are essentially incompatible or opposed at the philosophical or conceptual level. The second is that Legal Realism is a jurisprudential joke,
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Internal legal positivism: “Hurrah,” “Boo,” “Ehhh…”?
Revus, 2022Pablo A. Rapetti
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On the possibility of an internal legal positivism
Revus, 2022Jorge L. Rodríguez
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A Precedent-Based Critique of Legal Positivism
Social Science Research Network, 2022Benjamin c. Zipursky +1 more
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2015
This chapter examines the theories of the foremost legal positivists of the nineteenth century: Jeremy Bentham and John Austin. Bentham is best known as a utilitarian and law reformer, but who insisted on the separation between the ‘is’ and ‘ought’ of law, or what he preferred to call ‘expositorial’ and ‘censorial’ jurisprudence, respectively.
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This chapter examines the theories of the foremost legal positivists of the nineteenth century: Jeremy Bentham and John Austin. Bentham is best known as a utilitarian and law reformer, but who insisted on the separation between the ‘is’ and ‘ought’ of law, or what he preferred to call ‘expositorial’ and ‘censorial’ jurisprudence, respectively.
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The Genealogy of Legal Positivism
Oxford Journal of Legal Studies, 2004This article argues that legal positivism is best understood as a political tradition which rejects the Separation Thesis-the thesis that there is no necessary connection between law and morality. That tradition was committed for some time to eliminating the conceptual space in which the common law tradition and its style of reasoning operate.
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Interpretative conventions and legal positivism
Revus, 2022María Gabriela Scataglini
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