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The Invisible Origins of Legal Positivism - A Re-Reading of a Tradition (Hardcover, 2001 ed.)
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The Invisible Origins of Legal Positivism - A Re-Reading of a Tradition (Hardcover, 2001 ed.)
Series: Law and Philosophy Library, 52
Expected to ship within 10 - 15 working days
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Conklin's thesis is that the tradition of modern legal positivism,
beginning with Thomas Hobbes, postulated different senses of the
invisible as the authorising origin of humanly posited laws.
Conklin re-reads the tradition by privileging how the canons share
a particular understanding of legal language as written. Leading
philosophers who have espoused the tenets of the tradition have
assumed that legal language is written and that the authorising
origin of humanly posited rules/norms is inaccessible to the
written legal language. Conklin's re-reading of the tradition
teases out how each of these leading philosophers has postulated
that the authorising origin of humanly posited laws is an
unanalysable externality to the written language of the legal
structure. As such, the authorising origin of posited rules/norms
is inaccessible or invisible to their written language. What is
this authorising origin? Different forms include an originary
author, an a priori concept, and an immediacy of bonding between
person and laws. In each case the origin is unwritten in the sense
of being inaccessible to the authoritative texts written by the
officials of civil institutions of the sovereign state. Conklin
sets his thesis in the context of the legal theory of the polis and
the pre-polis of Greek tribes. The author claims that the problem
is that the tradition of legal positivism of a modern sovereign
state excises the experiential, or bodily, meanings from the
written language of the posited rules/norms, thereby forgetting the
very pre-legal authorising origin of the posited norms that each
philosopher admits as offering the finality that legal reasoning
demands if it is to be authoritative.
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