The Invisible Origins of Legal Positivism

by Conklin, William E.

• ISBN13: 9780792371014
• ISBN10: 0792371011
• Format: Hardcover
• Copyright: 2001-10-01
• Publisher: Kluwer Academic Pub

Summary

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.

Table of Contents

Introduction	1	(12)
The Positive Law/Natural Law Dichotomy, Aristotle and the Greek Totemic Culture	13	(24)
The Rise of the Positive Law - Natural Law Dichotomy
The Constraint of the Positive Law - Natural Law Dichotomy
The Determinative Sense of Natural Laws
The Exclusionary Character of the Nomos/Physis Dichotomy
The Figurative Sense of Natural Laws
The Laws of the Totemic Culture
The Positive Law - Natural Law Dichotomy as Suspect
Invisibility in Modern Legal Thought	37	(20)
The Invisible Author
The Invisible as an Inaccessible Immediacy
The Invisible as an a priori Concept
The Invisibility of the Absent Origin
The Tradition of Legal Positivism in Modern Legal Thought	57	(16)
The Impersonality of Posited Laws
Is there a Tradition of Legal Positivism?
Three Inquiries
The Authorizing Origin of Posited Rules/Norms
The Problematic of Modern Legal Positivism
An Invisible Nature: The Origin of Thomas Hobbes's Civil Laws	73	(50)
The Paradox
Why is Language Important?
Nature as a Condition lacking a Shared Language
The Actors of a Language
The Problematic of Hobbes' Theory of Sovereignty
The Natural Condition
The Authority of Written Laws
Legal Obligation
The Mythology of Legal Authority
The Invisible Origin of the Authority of Hobbes' Civil Laws
The Forgotten Origion
Naming the Unnamable: Jean-Jacques Rousseau's General Will	123	(14)
The Authors as the General Will
The Legislature
Civil Laws as the Expression of the general will
Naming the Unnamable
The Habits of the People: The Origin of John Austin's Laws Properly So Called	137	(34)
The Problematic of Austin's Theory of Law
Austin's Commentators
The Excise of the Natural Condition from Civil Society
The Historical Author
Is the Historical Author's Authority Unlimited?
The Inaccessibility of the Will of the People
Austin's Inaccessible Arche
Who are `the People'?
The Spirit of `the People'
The Invisible Origin of Legal Language: The Grundnorm	171	(30)
The Impure Origin of the Structure
An Hypothetical or a Catogorical Origin?
The Origin as an a priori Concept
The Invisible Origin of the Authority of Norms
The Forgotten Origin: H.L.A. Hart's Sense of the Pre-Legal	201	(46)
The Rule of Recognition
The Immediacy and the Statement
Examples of the Hart's Distinction between Immediacy and Legal Statements
Does the Authorizing Origin Pre-exist Primary Rules?
Is the Authorizing Origin Internal to the Primary and Secondary Rules?
Is the Authorizing Origin Accessible to Legal Officials?
The Forgotten Origin
Forgetting the Act of Forgetting: Raz's Inaccessible Origin of Legal Reasoning	247	(48)
Experiential Bonding as the Origin of the Legal Structure
The Official's Forgetting of the Experiential Origin
The Legal Point of View
The Unwritten Experiential Beliefs
The Language of the Legal Point of View
Violence and the Constitution of the Institutions
The Idealism of Raz's Legal Reasoning
Forgetting the Act of Forgetting
The End of Legal Positivism	295	(22)
The Finality of the Trace of Auctoritas
The Invisible Origin
The Violence of the Juridical Production of the Origin
The Contradiction
Forgetting the Origin
The Crisis
The End of a Tradition
Bibliography	317	(24)
Primary Sources
Secondary Sources
Index	341