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STATUTORY POSITIVISM

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Abstract:

Although the separation principle underlies recent discussions on the nature of legal positivism, the principle appears to have played no role in the lively European debate over legal positivism a hundred years ago. A prominent species of legal positivism in that debate was statutory positivism, characterized by its critics and by many legal historians today as an identification of the law with the statute. In the paper it is argued that this identification is not defensible as an explication of statutory positivism, understood in the terms of those historical figures who defended the position. An alternative characterization is developed, which is then employed in the “Radbruch-Problematic”, where the claim has been made, mistakenly, that Radbruch defended statutory positivism in his earlier work.
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  • Legisprudence aims at contributing to the improvement of legislation by studying the processes of legislation from the perspective of legal theory. The content of the journal covers legislation in a broad sense. This comprises legislation in both the formal and the material sense (from national and European parliaments, regulation, international law), and alternatives to legislation (covenants, sunset legislation, etc.). It also takes in regulation (pseudo-legislation, codes of behaviour and deontological codes, etc.). The journal is theoretical and reflective. Contributions to the journal make use of an interdisciplinary method in legal theory. Comparative and system transcending approaches are encouraged. Sociological, historical, or economic studies are taken into account to the extent that they are relevant from the perspective of interdisciplinary legal theory. Dogmatic descriptions of positive law are not taken into consideration.
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