A critical reappraisal of legal positivism

Forschungsprojekt

Anglophone jurisprudence has been, and continues to be, influenced and shaped by the seminal contribution of H.L.A. Hart. However, it appears that in many ways contemporary legal positivism has run out of steam. Many of the central building blocks used by legal positivists can be called into question. Must a theory of law aspire to universal application? Is it beneficial (or even possible) to construct a theory of law through conceptual analysis by determining its necessary and sufficient conditions? On what grounds, and through what evaluative methodological criteria, is the object of analysis constituted and its parameters defined?

Utilising the perceived guidance function of law as the commencement point of the research, this project seeks to re-evaluate and reappraise the legal positivist approach to the theory of law. By first challenging the assumption that the law functions to guide human behaviour, space is thereby created for a critique of the methodological approach underpinning it and, more broadly, legal positivism’s focus of inquiry. Preoccupation with questions concerning the conditions of legal validity, or the normativity of law, have ultimately shaped the contours of the legal positivist framework, to the exclusion of other avenues of jurisprudential inquiry. During the project, I shall be exploring whether other methodological approaches, alongside theoretical frameworks, can yield a more ‘fruitful’ contribution to a theory of law, and whether or not they can (or even should) ultimately work in conjunction with the legal positivist approach to jurisprudence.