Law & Society Blog

Hanno’s Very Brief Note On Positivism elicited this comment from a reader:
Wouldn’t some positivists avoid a term like “social efficacy”, which sounds like Hart’s approach? Similarly, don’t positivists avoid defining the “necessary” rather than “permissible” content of law? (I.e., positivism allows morals and even “natural law” as content and origin of law, but not as […]

Spain has followed the Netherlands and Belgium in legalizing gay marriage. According to the New York Times,
[t]he measure passed the 350-seat Congress of Deputies by a vote of 187 to 147. The bill, part of the ruling Socialists’ aggressive agenda for social reform, also lets gay couples adopt children and inherit each others’ property. The […]

Much confusion about the goals of retributivism or the absence of such, stems from statements such as:For retributivists, punishment is not a means to an end, rather, it is an end in itself, for example, as the affirmation of the unchanged persistence of a legitimate normative order, despite the crime.What this really means is that punishment is justified as an expression of a positive value, here, the affirmation of a legitimate normative order…. In other words, the goals of retributivism are very different from those of consequentionalism (one is normative, the other is factual), even though every factual state of affairs brought about by the pursuit of retributivist goals could also serve as an end for a consequentionalist justification of punishment.

One of the more fascinating “great debates” in the United States (and as far as I can tell only in the United States) is that between evolutionary theory and creationism or intelligent design. Let me clarify right away that I don’t consider the substance of that debate interesting at all. Within the scientific system, the […]

Unfortunately, MacOS X 10.4.1 caused all sorts of problems with GPGMail, one of the most useful hacks that integrates GnuPG into Apple’s mail.app…. Open terminal.app and type:defaults write com.apple.mail EnableBundles 1defaults write com.apple.mail BundleCompatibilityVersion 2exitThen relaunch mail.app, and GPG should work just fine!

The Guardian is running a great article by Richard Stallman that illustrates the effects of software patents by analogizing them to patents on literary ideas. Consider Stallman’s example of a hypothetical literary patent:
Claim 1: a communication process that represents, in the mind of a reader, the concept of a character who has been in jail […]

Larry Solum (now at the University of Illinois at Urbana-Champaign) posted a new entry on legitimacy to his excellent legal theory lexicon. After distinguishing between normative and factual theories of legitimacy, Solum lists four contemporary arguments:

Legitimacy as derived from democracy
Legitimacy as legal authority
Legitimacy as reliability
Rawls’ concept of legitimacy.

In discussing the reliability concept of procedural legitimacy, […]

John Doyle of the Washington & Lee University law library maintains a nice blog with a focus on legal periodicals and legal publishing. The most-cited legal periodicals search engine is an excellent tool for anyone interested in (or dependent upon) legal publishing. Here is a brief overview of the methodology used to generate the rankings:
The […]

In “The Perils of Pervasive Legal Instrumentalism,” Brian Tamanaha paints a bleak picture of how instrumentalism has corroded the very legitimacy of the law.In situations of sharp disagreement over the social good, if law is perceived as an instrument, individuals and groups within society will endeavor to seize the law, and fill in, interpret, and apply the law to serve their own ends…. But as there is no consensus as to the extra-legal standard, the pragmatic non-positivism remains strangely undefined, which permits conservative and liberal writers alike to claim the pragmatist label.In the opening paragraphs of his essay, Tamanaha states that there are two possible views with respect to the pervasiveness of legal instrumentalism.

Robert Alexy, Professor of Jurisprudence at the University of Kiel, has proposed one of the most useful definitions of positivism. Virtually all definitions of law, that is answers to the question: “What is law?”, rely on a combination of the following three elements:

Social efficacy (soziale Wirksamkeit),
Proper promulgation (ordnungsgem?ß?¸e Gesetztheit), and
Permissible content (inhaltliche Richtigkeit).

Non-positivist positions include […]