The Invisible Origins of Legal Positivism: A Re-Reading of a TraditionSpringer Science & Business Media, 2001 M08 31 - 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
The Positive Law Natural Law Dichotomy Aristotle and the Greek Totemic Legal Culture | 13 |
Invisibility in Modern Legal Thought | 37 |
The Tradition of Legal Positivism in Modern Legal Thought | 57 |
An Invisible Nature The Origin of Thomas Hobbess Civil Laws | 73 |
Naming the Unnamable JeanJacques Rousseaus General Will | 123 |
The Habits of the People The Origin of John Austins Laws Properly So Called | 137 |
The Invisible Origin of Legal Language The Grundnorm | 171 |
The Forgotten Origin HLA Harts Sense of the PreLegal | 201 |
Forgetting the Act of Forgetting Razs Inaccessible Origin of Legal Reasoning | 247 |
The End of Legal Positivism | 295 |
317 | |
341 | |
Other editions - View all
The Invisible Origins of Legal Positivism: A Re-Reading of a Tradition W.E. Conklin Limited preview - 2001 |
The Invisible Origins of Legal Positivism: A Re-Reading of a Tradition W.E. Conklin Limited preview - 2012 |
Common terms and phrases
actors Aristotle auctoritas Austin authoritative Authority of Law authorizing origin Bentham binding laws chap civil laws civil society claim Clarendon Press Concept of Law constitution divine Essays experiential external grounding Grundnorm H.L.A. Hart Hans Kelsen Hart's historical authors Hobbes humanly posited laws immediacy inaccessible institutional source institutional structure internal statements interpretation invisible Author invisible origin Joseph Raz juridical officials Justice Kant Kelsen laws properly legal authority legal existence legal language legal officials legal point 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 Phenomenology Philosophy physis Political posited rules postulate pre-legal primary rules properly so called Pure Theory Raz's recognize Representer Rousseau rule of recognition rules/norms secondary rules sense signified signs Social Contract sovereign theory of law Thomas Hobbes trace tradition of legal Trans transcends ultimate University Press unstated unwritten unwritten laws writing