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Legal Positivism and the Separation of Existence and Validity
Author(s) -
GRELLETTE MATTHEW
Publication year - 2010
Publication title -
ratio juris
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.344
H-Index - 10
eISSN - 1467-9337
pISSN - 0952-1917
DOI - 10.1111/j.1467-9337.2009.00442.x
Subject(s) - legal positivism , normative , formality , jurisprudence , positivism , law , adjudication , sociology , legal realism , constructive , legislation , empirical legal studies , legal culture , variety (cybernetics) , legal formalism , legal research , political science , epistemology , comparative law , private law , black letter law , philosophy , computer science , process (computing) , artificial intelligence , operating system
This paper centers upon the issue, within the project of analytic jurisprudence, of how to construe the status of the legal activities of a state when there is a disjuncture between a nation's formal legal commitments, such as those stated within a bill or charter of rights, and the way in which its officials actually engage in the practice of law, i.e., legislation and adjudication. Although there are two positions within contemporary legal theory which focus directly on this issue (Inclusive and Exclusive Legal Positivism), neither is able to offer an acceptable descriptive‐explanatory account of the variety of legal activities at play within such situations. Thus, tensions between legal formality and practice, existent in many legal systems today, can be used to delineate a theoretical gap in regard to our understanding of law. This paper serves to acknowledge that point, and suggests a possible constructive solution to the positivists' descriptive‐explanatory problem. Furthermore, in taking seriously the gap between the normative orientation of a legal system and its de facto practice, this paper also suggests other areas within analytic jurisprudence that might be meaningfully informed by that issue.