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Vol 21 No 11 Nov/Dec 2016

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Critical Legal Positivism

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Kaarlo TuoriUniversity of Helsinki, Finland

ISBN13: 9780754622727
ISBN: 075462272X
Published: April 2004
Publisher: Ashgate Publishing Ltd
Country of Publication: UK
Format: Hardback
Price: £95.00



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This scholarly treatise develops a critical version of legal positivism as the basis for modern legal scholarship. The author develops an alternative to the traditional legal positivism of Hans Kelsen and H.L.A. Hart giving an account of how modern positive law can solve the problem of its limits and criteria of legitimacy.;The book makes a distinction between the two aspects of law: the law as a legal order, and the law as legal practices. Secondly, the law as a legal order is examined in terms of three levels: the surface level, the legal culture and the deep structure of law. These levels are connected through specific relations that are channelled by the legal practices of lawmaking, adjudication and legal science. These relations, responsible for the internal dynamics of the law, are termed sedimentation, constitution, specification, limitation, justification and criticism. Finally, the book aims to provide fresh insights into the autonomy of modern law as well as the interplay of external and internal factors in the development of the law

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Contents:
Introduction - Modern law and its problems. Three Narratives of Modern Law: Max Weber - the formal rationality of modern law; Francois Ewald - the rationality of the norm; J rgen Habermas - the communicative rationality of law. The Aspects and the Levels of the Law: The two faces of the law; The levels of the law; The formation of the legal order - the relations of sedimentation and constitution; The self-limitation of the law; The legitimacy of modern law; Legal science.