Law Commons^™

Fuller And Godel: Prophets Against The Evils Of Positivism: How The Natural Law Is Necessary To Provide Legal Meaning And Consistency, Henry James Garon

LLM Theses

Gödel showed that formal systems which discuss natural numbers cannot be complete or prove their own consistency. Incompleteness in this sense is limited to formal systems, and so is not applicable to law by it own terms.

Looking to the philosophy behind the Incompleteness Theorem, Gödel intended to show that positivism was a bankrupt world-view, and this resonates strongly with Lon Fuller. Fuller is analogous to Gödel in his condemnation of the positivist philosophy because he showed that a system of rules, by itself, was not capable of rendering judgments. A legal system is dependent upon an external morality, but …

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

David Ingram

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

Philosophy: Faculty Publications and Other Works

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …

Extraterritoriality And Human Rights After Kiobel, Beth Stephens

Maryland Journal of International Law

No abstract provided.

Legal Positivism And Russell's Paradox, David G. Carlson

Faculty Articles

In this Article, I argue that legal positivism is subject to the same paradox as was engendered by Frege's set theory-a paradox that has come to be known as Russell's Paradox. Basically, Frege tried to define what a set is. Russell showed that, because of self-reference, any attempt to define the word "set" led to formal condition. I argue that Russell's analysis can be applied to legal positivism, if "legal positivism" is defined to mean that a complete and closed rule of recognition for law is a logical possibility. I also argue that, to the extent legal positivism claims that …

Are Judges The Makers Or Discoverers Of The Law?: Theories Of Adjudication And Stare Decisis Withspecial Reference To Case Law In Pakistan, Muhammad Munir Dr

Dr. Muhammad Munir

The debate about whether judges make or create the law is at the centre of any discussion about stare decisis. Modern authors have discussed the views of judges and jurists in the past. This work focuses on some of the notable judges and jurists of the twentieth century, such as Lord Denning, Lord Reid, Lord Devlin, Bodenheimer, Hart, Dworkin, from the Anglo–American legal systems. The views of the latter three jurists are very complicated and need particular attention. It is also pertinent to note that no one has explored the views of leading judges and jurists in Pakistan to know …