Get 20M+ Full-Text Papers For Less Than $1.50/day. Start a 14-Day Trial for You or Your Team.

Learn More →

Common Law – Civil LawThe Invisible Foundations of Originalism

Common Law – Civil Law: The Invisible Foundations of Originalism [Legal scholars have made many efforts to compare non-originalist models of constitutional adjudication with non-positivistic models of legal orders. Surprisingly, the opposite holds true for the relation between originalism and positivism; their relation and, indeed, their complementarity remain, to this day, largely unexplored. Although originalism and positivism have been the dominant models in the US and in Europe, they have never been an object of comprehensive comparison. This essay aspires to fill, in part, that gap. Focusing on methodological issues, on the one hand, I will suggest that, in principle, originalism and positivism overlap and, to a very considerable extent, might complement each other. On the other, I will argue that, whereas many originalists are inclined to endorse legal positivism at the justificatory level, the new versions of legal positivism defended by Raz, Marmor, and Shapiro reject originalism.] http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png

Common Law – Civil LawThe Invisible Foundations of Originalism

Part of the Law and Philosophy Library Book Series (volume 139)
Editors: Bersier, Nicoletta; Bezemek, Christoph; Schauer, Frederick
Sardo, Alessio
Common Law – Civil Law — Jan 1, 2022
Download PDF
22 pages

Loading next page...
 
/lp/springer-journals/common-law-civil-law-the-invisible-foundations-of-originalism-T7IyJjFiFl
Publisher
Springer International Publishing
Copyright
© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022
ISBN
978-3-030-87717-0
Pages
71 –93
DOI
10.1007/978-3-030-87718-7_7
Publisher site
See Chapter on Publisher Site

Abstract

[Legal scholars have made many efforts to compare non-originalist models of constitutional adjudication with non-positivistic models of legal orders. Surprisingly, the opposite holds true for the relation between originalism and positivism; their relation and, indeed, their complementarity remain, to this day, largely unexplored. Although originalism and positivism have been the dominant models in the US and in Europe, they have never been an object of comprehensive comparison. This essay aspires to fill, in part, that gap. Focusing on methodological issues, on the one hand, I will suggest that, in principle, originalism and positivism overlap and, to a very considerable extent, might complement each other. On the other, I will argue that, whereas many originalists are inclined to endorse legal positivism at the justificatory level, the new versions of legal positivism defended by Raz, Marmor, and Shapiro reject originalism.]

Published: Jan 1, 2022

There are no references for this article.