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Legal positivism

DOI
10.4324/9780415249126-T008-1
DOI: 10.4324/9780415249126-T008-1
Version: v1,  Published online: 1998
Retrieved April 21, 2021, from https://www.rep.routledge.com/articles/thematic/legal-positivism/v-1

References and further reading

  • Austin, J. (1832) The Province of Jurisprudence Determined, London: Weidenfeld & Nicolson, 1955.

    (This classic text of legal positivism is from Austin’s lectures: it is the basic statement of the theory of law as commands.)

  • Bentham, J. (1977) A Fragment on Government, in. J.H. Burns and H.L.A. Hart (eds) A Comment on the Commentaries and a Fragment on Government, London: Athlone Press.

    (This is another great classic, preceding Austin’s work, though mainly unpublished till later. In many respects, a more subtle account than Austin’s.)

  • Beyleveld, D. and Brownsword, R. (1989) ‘Normative Positivism: The Mirage of the Middle-Way’, Oxford Journal of Legal Studies 9: 463–512.

    (For advanced readers: this clearly depicts relations between positivism, realism and naturalism.)

  • Bobbio, N. (1950) ‘Scienza del diritto e analisi del linguaggio’, in U. Scarpelli (ed.), Diritto e analisi del linguaggio (Legal Science and Analysis of Language), Milan: Edizioni Di Comunita, 1976.

    (Advanced reading on linguistic analysis and the idea of law as science – a principled and structured body of knowledge; this attempts to combine neopositivistic ideas and Kelsen’s legal theory, through reflections on the analytical approach to the philosophy of law.)

  • Bobbio, N. (1960) Giusnaturalismo e positivismo giuridico (Legal Positivism and Legal Naturalism), Milan: Edizioni Di Comunita.

    (A collection of essays: unfortunately still unavailable in English, but far clearer than anything written in English on the controversy between legal positivism and naturalism.)

  • Bobbio, N. (1961) Il positivismo giuridico (Legal Positivism), Turin: Giappichelli.

    (Adds a historical survey to the subject matter of the previous book. Unfortunately also unavailable in English, but by far the best introduction for university students to legal positivism and contemporary legal thinking.)

  • Dworkin, R. (1978) Taking Rights Seriously, London: Duckworth.

    (This is a collection of essays; intriguing and currently very fashionable in English-speaking legal philosophy; brilliant and difficult writing; advanced reading.)

  • Ferrajoli, L. (1990) Diritto e ragione: teoria del garantismo penale (Law and Reason: A Theory of Guarantees in Criminal Law), Bari: Laterza.

    (The general part of this excellent book on individual rights in penal law makes a powerful contribution on the theme of legal certainty. Of average difficulty, but only available in Italian.)

  • Finnis, J. (1973) ‘Revolutions and Continuity of Law’, in A.W.B. Simpson (ed.), Oxford Essays in Jurisprudence, Oxford: Oxford University Press, 2nd series.

    (Extremely intelligent essay by a leading representative of naturalistic thought in post-Hartian philosophy of law: Hart’s analytical lesson has been well learned and put to use to criticize some positivistic ideas.)

  • Fryer, B., Hunt, A., McBarnet, D. and Moorhouse, B. (1981) Law, State and Society, London: Croom Helm.

    (Like the following item, this collects ideas and debates of Anglo-Saxon legal philosophy after Hart; more critical of Hartian positivism than the following. Advanced reading.)

  • Fuller, L.L. (1958) ‘Positivism and Fidelity to Law’, Harvard Law Review 71: 630–667.

    (This debate with Hart is a widely known classic, widely reprinted, constantly quoted; Fuller is passionate but confused; his later The Morality of Law (revised edn 1969) is a clearer and more convincing statement of the position sketched in 1958.)

  • Gavison, R. (1987) Issues in Contemporary Legal Philosophy: The Influence of H.L.A. Hart, Oxford: Clarendon Press.

    (Like the previous item, this collects ideas and debates of Anglo-Saxon legal philosophy after Hart; nearer to Hartian positivism than the preceding. Advanced reading.)

  • Jori, M. (1992) Legal Positivism, Aldershot: Dartmouth Publishing Co.

    (A collection of essays, adding up to a more extensive formulation of the ideas condensed in this entry. Introductory reading.)

  • Hacker, P. and Raz, J. (1977) Law, Morality and Society: Essays in Honour of H.L.A. Hart, Oxford: Clarendon Press.

    (The essays in this collection are largely comments on Hart’s legal philosophy. Most of the positivistic ideas subsequently debated in the Anglo-Saxon world can be found here.)

  • Harris, J.W. (1979) Law and Legal Science: An Inquiry into the Concepts Legal Rule and Legal System, Oxford: Clarendon Press.

    (This is a very clear presentation of and critical essay on positivistic theses. The author knows his Kelsen, and writes from that point of view. This might be used as an introduction, but perhaps better as more advanced reading.)

  • Hart, H.L.A. (1958) ‘Positivism and the Separation of Law and Morals’, in Essays in Jurisprudence and Philosophy, Oxford: Clarendon Press, 1983.

    (This is the manifesto of Hartian positivism. A well-argued classic, of medium difficulty; the other side of the debate with Fuller noted above.)

  • Hart, H.L.A. (1961) The Concept of Law, Oxford: Clarendon Press.

    (This is a classic and a must; conceived as an introduction to jurisprudence for Oxford students, and apparently plain common-sense reading, it is much more complex than it looks, and has been an outstandingly influential work.)

  • Hart, H.L.A. (1977) ‘American Jurisprudence through English Eyes: The Nightmare and the Noble Dream’, in Essays in Jurisprudence and Philosophy, Oxford: Clarendon Press, 1983.

    (The title here speaks for itself; a brilliant and witty essay, clearly positivistically biased. A must for US jurists dealing with Old England and vice versa.)

  • Kelsen, H. (1945) General Theory of Law and State, trans. A. Wedberg, Cambridge, MA: Harvard University Press.

    (A mature, and excellently translated, version of Kelsen’s ‘pure theory’, with an adaptation by the author of his thoughts to address an Anglo-Saxon audience; but still very German.)

  • Kelsen, H. (1979) Allgemeine Theorie der Normen (General Theory of Norms), trans. M. Hartney, Oxford: Clarendon Press, 1991.

    (This is the final, posthumous, statement of the legal positivism of the most important legal thinker of the twentieth century; an excellent introduction by the translator relates the text to Kelsen’s earlier work.)

  • MacCormick N. (1981) H.L.A. Hart, London: Edward Arnold.

    (The best commentary on Hart’s thinking in the English language. Also useful for university students.)

  • MacCormick, N. and Weinberger, O. (1986) An Institutional Theory of Law: New Approaches to Legal Positivism, Dordrecht: Reidel.

    (An attempt to overcome some of the problems of positivism as a legal theory, not limited to discussion of the Anglo-Saxon theorists – hence particularly useful reading for Anglo-Saxon students.)

  • Olivecrona, K. (1971) Law as Fact, London: Stevens & Co., 2nd edn.

    (A good presentation of the European version of legal realism. Useful introductory reading.)

  • Paulson, S.L. (1980) ‘Material and Formal Authorization in Kelsen’s Pure Theory’, Cambridge Law Journal 39: 172–193.

    (Advanced reading. It points out with brilliant clarity some weak points of Kelsen’s conception of ‘normative theory’.)

  • Postema, G.J. (1987) ‘The Normativity of Law’, in R. Gavison (ed.), Issues in Contemporary Legal Philosophy: The Influence of H.L.A. Hart, Oxford: Clarendon Press.

    (A view of the complex relation between law and social reality.)

  • Raz, J. (1975) Practical Reason and Norms, London: Hutchinson.

    (Goes beyond legal theory to discuss and clarify some basic aspects of normative speech and thinking. Not as well known as it deserves. Intermediate reading.)

  • Ross, A. (1951) ‘Tû-tû’, Harvard Law Review 70: 1456–1467.

    (Caustic and amusing, the basic idea, that a legal ‘world’ does not exist, should be considered seriously. Necessary reading for all legal students.)

  • Sampford, C. (1984) ‘Legal System and Legal Theory’, in D. Galligan (ed.), Essays in Legal Theory, Melbourne: Melbourne University Press.

    (Impassioned piece of post-Hartian legal theory, challenging the supposed systematicity of law. Interesting symptom of what is going on among Anglo-Saxon legal philosophers.)

  • Scarpelli, U. (1965) Cos’il positivismo giuridico, Milan: Edizioni Di Comunita.

    (Turning the traditional defence of legal positivism as a factual approach to law upside down, the author defends positivism as morally and politically indispensable to maintaining the rule of law. Advanced reading.)

  • Scarpelli, U. (1976) Diritto e analisi del linguaggio (Law and Linguistic Analysis), Milan: Edizioni Di Comunita.

    (This is a collection of essays belonging to the analytical school of legal philosophy, from all countries, dealing with legal theory and linguistic analysis.)

  • Stewart, I. (1987) ‘Closure and the Legal Norm: An Essay in Critique of Law’, Modern Law Review 50: 908–933.

    (A critical assessment of legal normativism. Advanced reading.)

  • Tur, R. and Twining, W. (1986) Essays on Kelsen, Oxford: Clarendon Press.

    (Excellent comments on various aspects of Kelsen’s legal theory by mainly Anglo-Saxon authors, but containing also contributions by R. Vernengo and O. Weinberger.)

  • Weinreb, L.L. (1978) ‘Law as Order’, Harvard Law Review 91: 909–959.

    (Balanced exposition of the natural law point of view on those points which have been particularly stressed by positivists.)

  • Williams, G. (1945) ‘The Controversy Concerning the Word “Law”’, repr. in P. Laslett (ed.), Philosophy, Politics and Society, 1st Series, Oxford: Blackwell, 1956.

    (The earliest application of linguistic-analytical ideas to legal philosophy. Strangely neglected today.)

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Citing this article:
Jori, Mario. Bibliography. Legal positivism, 1998, doi:10.4324/9780415249126-T008-1. Routledge Encyclopedia of Philosophy, Taylor and Francis, https://www.rep.routledge.com/articles/thematic/legal-positivism/v-1/bibliography/legal-positivism-bib.
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