By Margaret Martin
ISBN-10: 184946099X
ISBN-13: 9781849460996
Judging Positivism is a severe exploration of the tactic and substance of felony positivism. writer Margaret Martin is basically considering the way during which theorists who undertake the dominant positivist paradigm ask a restricted set of questions and supply an both restricted set of solutions, artificially circumscribing the sector of criminal philosophy within the procedure. The e-book focuses essentially, yet now not completely, at the writings of well-known felony positivist Joseph Raz. Martin argues that Raz's conception has replaced over the years and that those alterations have ended in deep inconsistencies and incoherencies in his account. One reoccurring topic within the ebook is that Razian positivism collapses from inside. within the technique of protecting his personal place, Raz is resulted in aid the perspectives of lots of his major competitors, particularly Ronald Dworkin, the criminal realists, and the normative positivists. the interior cave in of Razian positivism proves to be instructive. Promising paths of inquiry come into sight and questions which have been suppressed or marginalized by means of positivists re-emerge, prepared for curious minds to mirror on anew. the wider imaginative and prescient of jurisprudential inquiry defended during this ebook re-connects philosophy with the paintings of practitioners and the concerns of law's topics, bringing into concentration the relevance of criminal philosophy for legal professionals and laymen alike. [Subject: criminal Philosophy]
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Extra resources for Judging Positivism
Example text
This ever-present possibility presents a formidable challenge to the rule-plus-exception model, revealing it as an artificial regimentation of the practice. NE Simmonds forwards the most potent and 31 ╇ GJ Postema, Bentham and the Common Law Tradition (Oxford, Clarendon Press, 1986) 49 (footnote omitted). 32 ╇Raz, The Authority of Law, above n 8, at 52. Casting Law in a New Lightâ•…37 nuanced argument on this point. A careful study of his critique is enlightening as it illuminates the inadequacies of Raz’s adjudicatory model, demonstrating that it too is vulnerable to a counter-example.
In later chapters, I will prove that neither strategy succeeds. In chapter two, I illustrate why Raz’s attempt to accommodate common law reasoning into his theory is unsuccessful. Instead of presenting us with a nuanced theory of common law adjudication, Raz presents us with an artiÂ� ficial regimentation that coheres with his pre-existing positivist commitments. 97 On the surface, this strategy seems successful, but a closer look at the interconnections between the elements of his theory reveals the source of tension: as chapter three will make clear, one cannot abandon the view that judges apply the law and hope to keep the other core pieces of the puzzle in place.
This distinction presents us with a very limited array of options. Are judges primarily expositors who are under a duty to apply the law? Do judges operate first as expositors and then as censors, relying on moral arguments? Or are judges primarily censors? I will argue that all three of these options fail to adequately conceptualise the work of the judge. In Raz’s case it is the distinction between fact and value is to blame for this, as it is simply too sharp to reflect the phenomenology of judicial decision-making.