Continuity and Change in Legal Positivism

Huib M. de Jong, Wouter G. Werner

    Research output: Contribution to journalArticleAcademicpeer-review

    5 Citations (Scopus)

    Abstract

    Institutional theory of law (ITL) reflects both continuity and change of Kelsen's legal positivism. The main alteration results from the way ITL extends Hart's linguistic turn towards ordinary language philosophy (OLP). Hart holds – like Kelsen – that law cannot be reduced to brute fact nor morality, but because of its attempt to reconstruct social practices his theory is more inclusive. By introducing the notion of law as an extra-linguistic institution ITL takes a next step in legal positivism and accounts for the relationship between action and validity within the legal system. There are, however, some problems yet unresolved by ITL. One of them is its theory of meaning. An other is the way it accounts for change and development. Answers may be based on the pragmatic philosophy of Charles Sanders Peirce, who emphasises the intrinsic relation between the meaning of speech acts and the process of habit formation.
    Original languageEnglish
    Pages (from-to)233-250
    Number of pages18
    JournalLaw and philosophy
    Volume17
    Issue number3
    DOIs
    Publication statusPublished - 1998

    Keywords

    • Pragmaticism
    • Institutional theory
    • Ordinary language philosophy
    • Action
    • Validity
    • Meaning

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