From Positivism to Idealism (Applied Legal Philosophy)

198 Pages·2007·0.68 MB·English

by  Sean Coyle

FROM POSITIVISM TO IDEALISM
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From Positivism to Idealism
A Study of the Moral Dimensions of Legality
SEAN COYLE
University College London, UK
© Sean Coyle 2007
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system
or transmitted in any form or by any means, electronic, mechanical, photocopying, recording
or otherwise without the prior permission of the publisher.
Sean Coyle has asserted his right under the Copyright, Designs and Patents Act, 1988, to be
identified as the author of this work.
Published by
Ashgate Publishing Limited Ashgate Publishing Company
Gower House Suite 420
Croft Road 101 Cherry Street
Aldershot Burlington, VT 05401-4405
Hampshire GU11 3HR USA
England
Ashgate website: http://www.ashgate.com
British Library Cataloguing in Publication Data
Coyle, Sean
From positivism to idealism : rights, theory and the rule
of law. - (Applied legal philosophy)
1. Law - Philosophy 2. Legal positivism 3. Rule of law -
England 4. Rule of law - Wales
I. Title
340.1'0942
Library of Congress Cataloging-in-Publication Data
Coyle, Sean.
From positivism to idealism : a study of the moral dimensions of legality / by Sean Coyle.
p. cm. -- (Applied legal philosophy)
Includes index.
ISBN 978-0-7546-2399-1 (alk. paper)
1. Legal positivism. 2. Law--Philosophy. 3. Law--Moral and ethical aspects. I. Title.
K331.C69 2007
340'.112--dc22
2007009760
ISBN 13: 978-0-7546-2399-1
Printed and bound in Great Britain by MPG Books Ltd, Bodmin, Cornwall.
Contents
Series Editor’s Preface vii
Preface ix
1 Reflection on Law’s Nature 1
Jurisprudence and the Moral Life 7
The Importance of a Historical Perspective 14
2 Reason, Will and Law 19
Morality, History and the Will 20
Natural Law and Protestant Autonomy 26
Historicism and Geist 34
3 Doctrinal Scholarship and the Science of Right 39
Rights and Forms of Justice 40
Natural Right and Political Authority 48
Natural Right, Juridical Reason and Legal Doctrine 57
4 Legal Positivism, Doctrinal Science and Statist Conceptions of Law 65
Doctrinal Science and Posited Rules 66
Political Stability and ‘Top-Down’ Authority 69
Posited Rules and Formal Authority 74
Positivism and Statism 79
Statism and its Limits 83
Statist Impulses and Moral Visions 88
5 The Changing Face of Positivism: From Hobbes to Hart 91
Legal Science in the Century after Hobbes 92
The Nature of Positivistic Legal Science 97
Social Order and the Significance of ‘Rules’ 100
The Limits of Legal Positivism 108
6 The Limits of Legal Positivism 111
Validity and Recognition 111
Recognition and its Limits 116
Recognition and Construction 118
From Positivism to Idealism 124
vi From Positivism to Idealism
7 Beyond Positivism and Idealism 127
The Character of Legal Reflection 130
Legal Reason 139
The Withering of Ideals 144
8 Liberal Politics and Private Law 147
Rights, Interests and Legal Doctrine 148
Private Law, Powers and the Will 152
Individualism and Autonomy 160
9 The Moral Nature of Law 163
Morality and Identity 164
Constructing the Ideal 172
Legality, Theory and Geist 177
Index 181
Series Editor’s Preface
The objective of the Applied Legal Philosophy series is to publish work which adopts
a theoretical approach to the study of particular areas or aspects of law or deals with
general theories of law in a way which focused on issues of practical moral and
political concern in specific legal contexts.
In recent years there has been an encouraging tendency for legal philosophers to
utilize detailed knowledge of the substance and practicalities of law and a noteworthy
development in the theoretical sophistication of much legal research. The series
seeks to encourage these trends and to make available studies in law which are both
genuinely philosophical in approach and at the same time based on appropriate legal
knowledge and directed towards issues in the criticism and reform of actual laws
and legal systems.
The series will include studies of all the main areas of law, presented in a
manner which relates to the concerns of specialist legal academics and practitioners.
Each book makes an original contribution to an area of legal study while being
comprehensible to those engaged in a wide variety of disciplines. Their legal
content is principally Anglo-American, but a wide-ranging comparative approach is
encouraged and authors are drawn from a variety of jurisdictions.
Tom D. Campbell
Centre for Applied Philosophy and Public Ethics,
Charles Sturt University, Australia
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Preface
This book is intended as a contribution to jurisprudential reflection on the nature
of legality. The term ‘jurisprudence’ in the Anglo-American legal tradition
generally refers to the philosophical study of the general features of law, both
as a social phenomenon and as an intellectual object of moral significance. As
such, jurisprudential theories have as their main goal the elaboration of the
general properties of law and legal order, at a level of abstraction that is in some
degree removed from the immediate sphere of concern of the practising lawyer.
Contemplation of these more abstract theses and concepts is the central aim of
jurisprudence; in doing so the legal philosopher may hope to clarify the intellectual
basis and presuppositions entailed by the practitioner’s activities. The detailed
application of such general theoretical insights to the concrete substantive issues
arising from practical, legal and doctrinal argument is then the secondary business
of ‘applied legal theory.’
The present work is an instance of ‘applied legal theory’ not in the sense that it
seeks to apply a general theory of legality or ethics to a particular problem (for the
central argument of the book is that such a distinction between theory and practice is
misleading). Rather, it represents an attempt to show that theoretical insights can be
grasped only within particular practices, so that theory and application go inevitably
together. It is, therefore, an attempt to understand the nature of legality not in general,
but within the British polity specifically. In this respect, the book seeks consciously
to depart from the predominant forms of jurisprudential inquiry carried on in Anglo-
American law schools at the present day, and hopes to reconnect with the traditional
jurisprudential investigation of the moral nature of law. Modern jurisprudential
arguments increasingly hinge upon a limited number of disagreements as to the
correct way in which to refine a series of conceptual distinctions and categories.
When not concerned with conceptual boundaries, they tend to concern the proper
description of essentially the same theoretical object, a ‘liberal theory of justice’.
These efforts, I argue, are misguided for they fail to grasp the essentially practical or
‘applied’ character of jurisprudential thought.
I have endeavoured in writing this book to keep its length as short as possible. In
the face of a vast and ever-growing jurisprudential literature, there is (I hope) some
virtue to be found in a shorter work seeking to develop its own set of arguments
and concerns, rather than engaging with established and well-worn arguments in an
exhaustive way. The book’s brevity has necessarily entailed a certain ruthlessness
in pursuing a particular argumentative course at the expense of many possible lines
of development. I hope in time to explore these broader themes in other published
books and essays.