By Martin P. Golding, William A. Edmundson
ISBN-10: 0631228314
ISBN-13: 9780631228318
Written by way of a world meeting of special philosophers and criminal theorists, The Blackwell consultant to the Philosophy of legislation and felony idea brings into concentration the valuable modern issues and matters within the zone. all the 23 essays accommodates crucial history fabric and advances key arguments. themes contain criminal positivism, ordinary legislation concept, serious felony concept, American criminal Realism, feminist felony thought, felony legislations, agreement legislations, tort legislations, facts, legal responsibility, theories of rights, punishment, felony reasoning, objectivity, theories of legislations, continental views on legislation, and so forth.
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Extra resources for The Blackwell Guide to the Philosophy of Law and Legal Theory (Blackwell Philosophy Guides)
Sample text
Raz 1994: 219– 21; Dickson 2001). , Coleman 2001: 175–97; Dickson 2001); this argument, and the question of whether a morally neutral form of legal positivism is possible, will be revisited below. To return to the typology, the third strand of legal positivism is that of Hans Kelsen (Kelsen 1967, [1934] 1992), who published much of his work in German, and remains better known and more influential on continental Europe (and in Latin America and South America) than he ever has been in the United Kingdom and the United States.
As Mark Bedau has noted, a stick pinned against a rock in a stream by the backwash that very stick has created may exhibit the first three features: it is pinned against a rock, its being pinned against a rock causes the backwash, and it is pinned against the rock because its being pinned against the rock causes the backwash. But no one would be tempted by the view that it is the stick’s function to be pinned against the rock (Bedau 1992: 786). One way to accommodate such cases is to emphasize that functions are ascribed when there is, in some sense, a good realized through the activity: either an end sought out by the designer of the object, or simply the selfmaintenance of the thing in question, or the like.
The usual summary of legal positivism comes from a few lines stated in 1832 by John Austin (1790–1859), the person frequently seen as the founder of legal positivism: The existence of law is one thing; its merit or demerit is another. Whether it be or not be is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we --------------------------------------------------------------------------------------------------------------------------------------------- 29 -------------------------------------------------------------------------------------------------------------------------------------------- ---------------------------------------------------------------------------------------------------------------------------------------------------------- Legal Positivism --------------------------------------------------------------------------------------------------------------------------------------------------------happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation.
The Blackwell Guide to the Philosophy of Law and Legal Theory (Blackwell Philosophy Guides) by Martin P. Golding, William A. Edmundson
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