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Legal Positivism in a Global and Transnational Age

Part of the Law and Philosophy Library Book Series (volume 131)

Editors: Siliquini-Cinelli, Luca

DOI: 10.1007/978-3-030-24705-8

ISBN: 978-3-030-24704-1

Publisher: Springer International Publishing - Springer Journals

Aug 31, 2019

1 - 10 of 11 Chapters

Available

Legal Positivism in a Global and Transnational Age: Introduction

Siliquini-Cinelli, Luca

Pages: 1 –44

[This introductory chapter sets out the book’s aim and outlines the contributions which compose it. In doing so, it also offers a contextualisation of the origins and recent developments of legal positivist thought in light of current processes of globalisation and transnationalism.]
Available

About the Impossibility of Absolute State Sovereignty. The Modern Era and the Early Legal Positivist Claim

Núñez, Jorge Emilio

Pages: 47 –64

[State sovereignty is often thought to be and seen as absolute, unlimited. However, there is no such a thing as absolute state sovereignty. Indeed, absolute or unlimited sovereignty is impossible because all sovereignty is necessarily underpinned by its conditions of possibility. The present...
Available

Taking Legal Positivism Beyond the State: Finding Secondary Rules?

Collins, Richard

Pages: 65 –91

[HLA Hart famously denied that the international legal order could be considered as a legal system, arguing that it lacked a necessary distinction between primary and secondary rules, the latter being sustained in place through the practices of a distinct class of legal official. Despite this...
Available

New International Legal Positivism: Formalism by Another Name?

Nicholson, Matthew

Pages: 93 –119

[This chapter explores the work of Jörg Kammerhofer and Jean d’Aspremont. Through a review of Kammerhofer’s Kelsenian approach to international law and d’Aspremont’s HLA Hart-inspired theory of the sources of international law and the nature of international law more generally, it questions the...
Available

Legal Positivism as Tekhnē: Postnational Normative Ontology and the Positivist Effectual Temporality

Siliquini-Cinelli, Luca

Pages: 123 –154

[When discussing the nature and functioning of global and transnational modes of regulation, scholars embark upon what may be defined as ‘postnational normative ontology.’ While the debate on this subject has proved to be insightful from several perspectives of inquiry, global and transnational...
Available

Barking Up the Wrong Tree? Systems Theory and the ‘Social Positivisation’ of Human Rights

Hanna, Mark Patrick

Pages: 155 –178

[The paradox of human rights is that they are usually only evidenced by their violation. The problem can generally be said to be ‘political,’ as it is hard to establish anything as ‘universal’ in a world divided into independent nation states. Of course, as long as law remains anchored in the...
Available

Before and After Legal Positivity: Peremptory Norms from Global and Transnational Social Practice

Retter, Mark D.

Pages: 179 –212

[This chapter examines the difficulties legal positivism faces explaining the formation and content of peremptory norms. On the one hand, these norms have a universal, peremptory and non-derogable character, based on the importance of their content, which appears to be in tension with the...
Available

Positivism and the Peace/Power Dialectic: Feminist Reflections in a Transnational Age

Brayson, Kimberley

Pages: 215 –252

[Human rights have often been described as the ‘morality of the law.’ Decades of feminist critique have exposed the foundations of law as deeply biased and patriarchal. And yet the idea that almost all legal philosophers are or should be positivists continues to hold sway in some quarters. The...
Available

Beyond Legal Positivism in Transnational Law

Tourkochoriti, Ioanna

Pages: 253 –275

[The ongoing migration of legal ideas shows that there are some principles of justice and morality that are considered important and compelling and that are served better through the inclusion into positive law of legal tools that have been elaborated in other parts of the world in order to...
Available

How Post-Positivism Sheds Light on Treaty Interpretation: Celebrating the VCLT Rule of Interpretation

Djeffal, Christian

Pages: 277 –294

[What does post-positivism reveal about the Vienna Convention on the Law of Treaties (VCLT) rule of interpretation? This chapter argues that post-positivism can uncover the justificatory function of the VCLT rule of interpretation. Post-positivism delivers a hypothesis with explanatory value that...

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