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James Y Stern - One of the best experts on this subject based on the ideXlab platform.

  • the Positive Law model of the fourth amendment
    Harvard Law Review, 2016
    Co-Authors: William Baude, James Y Stern
    Abstract:

    For fifty years, courts have used a “reasonable expectation of privacy” standard to define “searches” under the Fourth Amendment. As others have recognized, that doctrine is subjective, unpredictable, and conceptually confused, but viable alternatives have been slow to emerge. This Article supplies one.We argue that Fourth Amendment protection should be anchored in background Positive Law. The touchstone of the search-and-seizure analysis should be whether government officials have done something forbidden to private parties. It is those actions that should be subjected to Fourth Amendment reasonableness review and the presumptive requirement to obtain a warrant. In short, Fourth Amendment protection should depend on property Law, privacy torts, consumer Laws, eavesdropping and wiretapping legislation, anti-stalking statutes, and other provisions of Law generally applicable to private actors, rather than a freestanding doctrine of privacy fashioned by courts on the fly. This approach rests on multiple grounds. It is consistent with the history of the Fourth Amendment and with the structure of protection in the closely related area of constitutional property. It draws upon fundamental principles of liberal constitutionalism, namely a concern about abuse of official power. And it is superior to current privacy-based doctrine in many practical ways: it is clearer, more predictable, more accommodating of variation in different times and places, and more sensitive to the institutional strengths of legislative bodies, particularly when it comes to issues presented by new technologies. It also has significant doctrinal implications. Of most immediate importance, it provides a framework to analyze third-party problems — situations in which information about one person is obtained from another — that is more coherent and more attractive than the modern third-party doctrine. It also provides a new framework for many other contested Fourth Amendment questions, from abandoned property and DNA to the use of drones.

Philippe Nonet - One of the best experts on this subject based on the ideXlab platform.

  • what is Positive Law
    Yale Law Journal, 1990
    Co-Authors: Philippe Nonet
    Abstract:

    The following notes attempt a brief introduction to the mature works of Nietzsche that speak most pointedly and most explicitly to the fundamental questions of jurisprudence. The main texts upon which it relies are contained in Jenseits von Gut und Bose, first published in 1886, immediately after Also Sprach Zarathustra; and Zur Genealogie der Moral, first published in 1887.1 By Nietzsche's own instructions, these last two books are to be read as a single work, since the latter was written as an "addition intended to complete and clarify" the former. Oddly perhaps the title of this Essay does not even allude to the work of Nietzsche. It only asks the question: what is Positive Law? Wrongheaded as it may seem, the omission is deliberate. The task before us indeed calls upon us to think through the question of the essence of Positive Law. To study Nietzsche is not to ascertain the historical record of "what Nietzsche said," nor to seek mastery of that mass of materials in the construction of tidy "nietzschean" doctrines. Great thinkers demand that we let their words draw our attention to the matter at issue in their thought. At issue in Nietzsche's thought is the question of the essence of Positive Law.

Claudio Michelon - One of the best experts on this subject based on the ideXlab platform.

  • virtuous circularity Positive Law and particular justice
    Ratio Juris, 2014
    Co-Authors: Claudio Michelon
    Abstract:

    This paper argues that the Positive allocative decisions paradigmatically carried out by the application of legal rules are a necessary condition for arguments about particular justice (i.e., distributive and commutative justice) to make sense. If one shifts the focus from the distinction between distributive and commutative justice to what the two aspects of particular justice are for, namely, providing criteria to judge the allocation of goods, it becomes clear that the distinction is conceptually unstable. The paper argues that stabilizing the distinction is worthwhile and that this can only be accomplished by the introduction of Positive allocation schemes.

  • The Virtuous Circularity between Positive Law and Particular Justice
    SSRN Electronic Journal, 2011
    Co-Authors: Claudio Michelon
    Abstract:

    The paper argues that there is a conceptual connection between Positive Law and justice such that the Positive allocative decision paradigmatically carried out by the application of legal rules is a necessary condition for arguments about particular justice to make sense. If one turns the focus form the distinction between distributive and corrective justice to what the two aspects of particular justice are for - namely, providing criteria to judge the allocation of goods - it becomes clear that the distinction is conceptually unstable. The paper argues that stabilizing the distinction is a worthy objective and that the best (indeed the only feasible) strategy to achieve this aim is to clarify the conceptual relation between, on the one hand, distributive and corrective justice and on the other, Positive Law, without falling into the trap of oversimplifying that relationship in a way that many ‘informative’ conceptions of the distinction do.

Douglas Husak - One of the best experts on this subject based on the ideXlab platform.

  • Abetting a Crime
    Law and Philosophy, 2014
    Co-Authors: Douglas Husak
    Abstract:

    I focus on the set of problems that arise in identifying both the actus reus and (to an even greater extent) the mens rea needed by an abettor before she should be criminally liable for complicity in a crime. No consensus on these issues has emerged in Positive Law; commentators are enormously dissatisfied with the decisions courts have reached; and critics disagree radically about what reforms should be implemented to rectify this state of affairs. I explicitly deny that I will be able to solve these problems, although I hope at least to identify a central source of the confusion. In my view, the problem results largely from conceptualizing the liability of abettors as derivative. This diagnosis helps us to understand why the problem is likely to remain insoluble in Positive Law. If the test of an adequate theory consists primarily in its ability to produce results that conform to our moral intuitions about how particular cases should be resolved, no approach that can be implemented in the real world will prove wholly satisfactory. I advance a hypothesis about why failure is inevitable and what should be done in light of this predicament. Legal realities compel us to adopt a position that is suboptimal from a moral point of view.

Peter Langford - One of the best experts on this subject based on the ideXlab platform.

  • STATE: The Theory of Positive Law as methodological Anarchism
    2020
    Co-Authors: Peter Langford
    Abstract:

    This article situates Hans Kelsen’s essay, God and the State, against the horizon of Bakunin’s God and the State. This enables Kelsen’s methodology to be revealed as a circumscription of Feuerbach’s Left Hegelianism and its further radicalization in Bakunin. Kelsen’s separation of Law from any foundation other than in Law itself prefigures the question of the relationship between Law and life in contemporary Italian theoretical work on the notion of biopolitics. In place of a simple reversal of Kelsen’s methodological procedure, the question should centre upon distinguishing Law from life without repeating the opposition between the materiality of life and the abstraction of Law prefigured in Kelsen’s text.

  • Kelsenian legal science and Positive Law
    2017
    Co-Authors: Peter Langford, Ian Bryan, John Mcgarry
    Abstract:

    This contribution offers a preliminary critical examination of Kelsenian legal science, understood as a distinctive theoretical and methodological project for the comprehension of Positive Law. The authors contend that Kelsen sought, in his initial elaboration of a legal science of public Law, as a juridical theory of the state (Staatsrechtslehre), to controvert prevailing conceptions of legal science. The authors further argue that Kelsen’s subsequent articulation and refinement of a legal science of Positive Law structured Kelsen’s various critiques of natural Law theories, his opposition to the intrusion of ethico-political value judgments in the cognition of Positive Law, his constitutionalism, his theories of democracy and his conception of the relationship between domestic Law and international Law. Preparative to an extended and extensive examination, this critical discussion contemplates the contemporary relevance of Kelsenian legal science.

  • Positive Law and the Kelsenian Project
    2017
    Co-Authors: Peter Langford, Ian Bryan, John Mcgarry
    Abstract:

    This contribution considers the Kelsenian project of a legal science of Positive Law against the backdrop of a striking shift in orientation away from a distinctively Kelsenian theoretical and methodological framework for the comprehension of Positive Law. The authors examine and problematize contemporary formulations of legal positivism which have a tendency to simplify, downplay, disengage from or renounce an unambiguously Kelsenian conceptualisation of Law as a normative order. In so doing, the authors clear the ground for a critical reconstruction and assessment of the continued relevance of Kelsenian legal science for contemporary legal theories Positive Law.

  • conclusion Positive Law and the kelsenian project
    2017
    Co-Authors: Peter Langford, Ian Bryan, John Mcgarry
    Abstract:

    The Kelsenian project of a legal science of Positive Law remains, as demonstrated by the majority of contributions to this volume, a source of continued relevance for contemporary legal theory. In the subsequent development of legal theories of Positive Law, the Kelsenian project has, however, effectively ceased to be accorded a significant degree of pertinence. The loss of pertinence is marked by the marginalization of the methodological questions and framework of the Kelsenian project and the shift in orientation to other theoretical forms of conceptualization of Positive Law. The effective jettisoning of the Kelsenian project, predicated upon a transformation in the understanding of the purpose of a theory of Positive Law, has itself resulted in a significant differentiation and disagreement concerning the foundation for, and parameters of, a legal theory of Positive Law. This differentiation and disagreement has centred, in contemporary Anglo-American work in particular, upon the question of the degree to which the legal theory of Positive Law excludes or includes morality (see, for example, Gardner 2001; Kramer 2003; Himma 2001, 2002, 2005; Marmor 2001, 2002, 2007; Raz 1975, 1979, 2011; Shaprio 2009; Waluchow 1994) and upon the wider question of the theoretical or methodological basis for the elaboration of a legal theory of Positive Law (see, for example, Coleman 2001; Leiter 2007; Shapiro 2013).

  • introduction kelsen legal science and Positive Law
    2017
    Co-Authors: Peter Langford, Ian Bryan, John Mcgarry
    Abstract:

    Kelsenian legal science is a distinctive theoretical project for the comprehension of Positive Law. It distinguishes itself from the broader, nineteenth century German tradition of legal science through a process of critical interpretation and reworking. The process, initiated with Kelsen’s habilitation of 1911, Hauptprobleme der Staatsrechtslehre entwickelt aus der Lehre vom Rechtssatze (Kelsen 2008), represents a reconsideration of the fundamental elements of this tradition which preserves the methodological requirement for a theory of Law to be a science. The adoption of this interpretative position entails that the Kelsenian project assumes both the continued pertinence of a notion of legal science and the historical legitimacy of the tradition of legal science in relation to preceding conceptions of a theory of Law. The tradition of legal science is held, in the 1911 habilitation, to denote the origin from which further work on a theory of Law is to develop.