The Invisible Origins of Legal Positivism: A Re-Reading of a TraditionSpringer Science & Business Media, 2001 M11 30 - 350 pages Conklin's thesis is that the tradition of modern legal positivism, beginning with Thomas Hobbes, postulated different senses of the invisible as the authorising origin of humanly posited laws. Conklin re-reads the tradition by privileging how the canons share a particular understanding of legal language as written. Leading philosophers who have espoused the tenets of the tradition have assumed that legal language is written and that the authorising origin of humanly posited rules/norms is inaccessible to the written legal language. Conklin's re-reading of the tradition teases out how each of these leading philosophers has postulated that the authorising origin of humanly posited laws is an unanalysable externality to the written language of the legal structure. As such, the authorising origin of posited rules/norms is inaccessible or invisible to their written language. What is this authorising origin? Different forms include an originary author, an a priori concept, and an immediacy of bonding between person and laws. In each case the origin is unwritten in the sense of being inaccessible to the authoritative texts written by the officials of civil institutions of the sovereign state. Conklin sets his thesis in the context of the legal theory of the polis and the pre-polis of Greek tribes. The author claims that the problem is that the tradition of legal positivism of a modern sovereign state excises the experiential, or bodily, meanings from the written language of the posited rules/norms, thereby forgetting the very pre-legal authorising origin of the posited norms that each philosopher admits as offering the finality that legal reasoning demands if it is to be authoritative. |
Contents
Introduction | 1 |
The Positive LawNatural Law Dichotomy Aristotle and the Greek Totemic Culture | 13 |
The Constraint of the Positive Law Natural Law Dichotomy | 16 |
The Determinative Sense of Natural Laws | 19 |
The Exclusionary Character of the NomosPhysis Dichotomy | 20 |
The Figurative Sense of Natural Laws | 23 |
73 | 25 |
The Laws of the Totemic Culture | 26 |
The Mythology of Legal Authority | 107 |
The Invisible Origin of the Authority of Hobbes Civil Laws | 110 |
The Forgotten Origin | 117 |
Naming the Unnamable JeanJacques Rousseaus General Will | 123 |
The Author as the General Will | 125 |
The Legislature | 129 |
Civil Laws as the Expression of the general will 4 Naming the Unnamable | 133 |
The Origin of John Austins Laws Properly So Called | 137 |
The Positive Law Natural Law Dichotomy as Suspect | 34 |
Invisibility in Modern Legal Thought | 37 |
The Invisible Author | 39 |
The Invisible as an Inaccessible Immediacy | 44 |
The Invisible as an a priori Concept | 47 |
The Invisibility of the Absent Origin | 54 |
The Tradition of Legal Positivism in Modern Legal Thought | 57 |
Is there a Tradition of Legal Positivism? | 62 |
Three Inquiries | 64 |
The Authorizing Origin of Posited RulesNorms | 66 |
The Problematic of Modern Legal Positivism | 69 |
An Invisible Nature The Origin of Thomas Hobbess Civil Laws 1 The Paradox | 73 |
Why is Language Important? | 78 |
Nature as a Condition lacking a Shared Language | 80 |
The Actors of a Language | 82 |
The Problematic of Hobbes Theory of Sovereignty | 90 |
The Natural Condition | 93 |
The Authority of Written Laws | 98 |
Legal Obligation | 104 |
Austins Commentators | 138 |
The Excise of the Natural Condition from Civil Society 4 The Historical Author | 145 |
Is the Historical Authors Authority Unlimited? | 152 |
The Inaccessibility of the Will of the People 7 Austins Inaccessible Arche | 161 |
The Invisible Origin of Legal Language | 171 |
An Hypothetical or a Catogorical Origin? | 187 |
The Invisible Origin of the Authority of Norms | 193 |
The Forgotten Origin | 201 |
The Immediacy and the Statement | 208 |
Does the Authorizing Origin Preexist Primary Rules? | 223 |
Is the Authorizing Origin Internal to the Primary | 231 |
Is the Authorizing Origin Accessible to Legal Officials? | 237 |
Forgetting the Act of Forgetting | 247 |
The Officials Forgetting of the Experiential Origin | 255 |
The Legal Point of View | 269 |
The Language of the Legal Point of View | 277 |
The Idealism of Razs Legal Reasoning | 284 |
Other editions - View all
The Invisible Origins of Legal Positivism: A Re-Reading of a Tradition W.E. Conklin Limited preview - 2012 |
The Invisible Origins of Legal Positivism: A Re-Reading of a Tradition W.E. Conklin Limited preview - 2001 |
Common terms and phrases
actors Aquinas Aristotle auctoritas Austin authoritative authorizing origin Bentham binding laws bonding chap civil laws civil society claim Clarendon Press Concept of Law constitution customs divine Essays experience experiential external grounding Grundnorm H.L.A. Hart Hans Kelsen Hart's historical authors Hobbes human agents human laws humanly posited laws immediacy inaccessible institutional source institutional structure internal statements interpretation invisible Author invisible origin Joseph Raz Jurisprudence Kant Kelsen laws properly legal authority legal existence legal language legal officials legal positivism legal reasoning legal structure legislature Leviathan modern legal Moira moral natural condition natural law theory Neil MacCormick nomoi non-law official's Ota Weinberger Oxford Philosophy physis polis Political posited rules postulate pre-legal primary rules properly so called Pure Theory Raz's realm recognize Representer rule of recognition rules/norms secondary rules sense signified signs Social Contract sovereign theory of law Thomas Hobbes trace tradition of legal trans transcendent ultimate University Press unwritten laws writing