The Invisible Origins of Legal Positivism: A Re-Reading of a Tradition

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Springer 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.
 

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Contents

Introduction
1
Who are the People?
8
The Spirit of the People
9
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
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 Habits of the People The Origin of John Austins Laws Properly So Called
137
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 Laws of the Totemic Culture
26
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 73 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
The Mythology of Legal Authority
107
The Invisible Origin of the Authority of Hobbes Civil Laws
110
The Forgotten Origin
117
The Inaccessibility of the Will of the People 7 Austins Inaccessible Arche
161
The Invisible Origin of Legal Language The Grundnorm
171
The Impure Origin of the Structure
173
An Hypothetical or a Catogorical Origin? 3 The Origin as an a priori Concept
187
The Invisible Origin of the Authority of Norms
193
The Forgotten Origin H L A Harts Sense of the PreLegal
201
The Rule of Recognition
206
The Immediacy and the Statement
208
Examples of Harts Distinction between Immediacy and Legal Statements
209
Does the Authorizing Origin Preexist Primary Rules?
223
Is the Authorizing Origin Internal to the Primary and Secondary Rules?
231
Is the Authorizing Origin Accessible to Legal Officials?
237
The Forgotten Origin
242
Forgetting the Act of Forgetting Razs Inaccessible Origin of Legal Reasoning
247
Experiential Bonding as the Origin of the Legal Structure
248
The Officials Forgetting of the Experiential Origin 3 The Legal Point of View
255
The Unwritten Experiential Beliefs
273
The Language of the Legal Point of View
277
Violence and the Constitution of the Institutions
282
The Idealism of Razs Legal Reasoning
284
Forgetting the Act of Forgetting
285
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