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Vol 21 No 9 Sept/Oct 2016

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The Invisible Origins of Legal Positivism

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ISBN13: 9780792371014
ISBN: 0792371011
Published: August 2001
Publisher: Kluwer Law International
Format: Hardback
Price: Out of print

Conklin's thesis is that the tradition of modern legal positivism, beginning with Thomas Hobbes, has postulated different senses of the invisible as the authorizing origin of humanly posited laws. Philosophers who have espoused the tradition have posited that legal language is written and that the authorizing origin of humanly posited rules/norms is inaccessible to the written legal language. Conklin's re-reading of a tradition teases out how each of these leading philosophers has postulated that the authorizing origin of humanly posited laws is an unanalyzable externality to the language of the legal structure. Since legal existence is constituted from (written) posited rules/norms, the authorizing origin of the latter is inaccessible or invisible to the juridical language of ordinarily posited rules/norms. What is this authorizing 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.;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 unwritten the experiential meanings from the written language of the posited rules/norms, thereby forgetting the very pre-legal authorizing origin of the posited norms that each philosopher admits as offering the finality that legal reasoning demands if it is to be authoritative.

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1. The Positive Law/Natural Law Dichotomy, Aristotle and the Greek Totemic Culture.
2. Invisibility in Modern Legal Thought.
3. The Tradition of Legal Positivism in Modern Legal Thought.
4. An Invisible Nature: The Origin of Thomas Hobbes' Civil Laws.
5. Naming the Unnamable: Jean-Jacques Rousseau's General Will.
6. The Habits of the People: The Origins of John Austin's Laws Properly So Called.
7. The Invisible Origin of Legal Language: The Grundnorm.
8. The Forgotten Origin: H.L.A. Hart's Sense of the Pre-Legal.
9. Forgetting the Act of Forgetting: Raz's Inaccessible Origin of Legal Reasoning. Conclusion: The End of Legal Positivism. Bibliography. Index.