Contemporary non-positivism / Emad H. Atiq.

Format:

Book

Author/Creator:

Atiq, Emad H., author.

Series:

Cambridge elements. Elements in the philosophy of law, 2631-5815.

Cambridge elements. Elements in the philosophy of law, 2631-5815

Language:

English

Subjects (All):

Legal positivism.

Law--Philosophy.

Law.

Jurisprudence.

Physical Description:

1 online resource (82 pages) : digital, PDF file(s).

Edition:

1st ed.

Place of Publication:

Cambridge : Cambridge University Press, 2025.

Summary:

This Element defends and clarifies the thesis that the legality of a system of rules depends on its moral features. Positivists who deny this dependence struggle to explain: (1) the traditional classification of moral norms as a form of a priori law; (2) judicial reliance on moral norms in legal discovery; (3) persistent theoretical disagreement about intra-systemic, law-determining facts; (4) why radically arbitrary or immoral schemes of social organization represent borderline cases of law; and (5) why law, like other artifacts, can be evaluated in a kind-relative sense ("as law"). Meanwhile, traditional versions of non-positivism overstate the dependence going further than the desiderata warrant. A moderate theory is formulated: law is an artifact whose existence depends on adequately performing an essentially normative function. The theory's justification lies in its explanatory power: a comparison with other "value-driven" artifacts, such as artworks, proves vital for understanding legal language, reasoning, and practice.

Contents:

Cover

Title page

Copyright page

Contemporary Non-Positivism

Contents

1 Introduction: Subject Matter and Methodology

1.1 Analytic Jurisprudence and Conceptual Analysis

1.2 The Metaphysical Turn in Contemporary Jurisprudence

1.3 Conceptual Engineering and Practical Philosophy

2 The Argument Against Positivism

2.1 Moral Principles in Legal History

2.2 Moral Principles in Adjudication

2.3 Persistent Theoretical Disagreement

2.4 Variations on the Gunman Situation (or the Problem of the Legal Borderline)

2.5 Law as an Artifactual, Functional, and Goodness-Fixing Kind

3 How to Be a Legal Non-Positivist

3.1 Natural Law Theories, Strong and Weak

3.2 Dworkinian Interpretivism and the One-system View

3.3 Dual-Character and Aggregative-Cluster Concepts of Law

3.4 Non-positivism without the Frills

4 Outstanding Questions

4.1 Meta-normative Anxieties

4.2 The Stakes

References

Acknowledgments.

Notes:

Title from publisher's bibliographic system (viewed on 20 Feb 2025).

Description based on publisher supplied metadata and other sources.

ISBN:

1-009-28828-8

1-009-28832-6

1-009-28829-6

OCLC:

1482736347