A1 Refereed original research article in a scientific journal

The limits of legal positivism;




AuthorsLagerspetz, Eerik

PublisherUradni list Republike Slovenije

Publication year2025

Journal: Revus : journal for constitutional theory and philosophy of law

Issue56

ISSN1581-7652

eISSN1855-7112

DOIhttps://doi.org/10.4000/15sqs

Publication's open availability at the time of reportingOpen Access

Publication channel's open availability Open Access publication channel

Web address https://doi.org/10.4000/15sqs

Self-archived copy’s web addresshttps://research.utu.fi/converis/portal/detail/Publication/523364892

Self-archived copy's licenceCC BY SA

Self-archived copy's versionFinal draft


Abstract

In his book Advanced Introduction to Legal Positivism, Kaarlo Tuori focuses on the legal philosophies of two of the perhaps most important legal theorists of the 20th century, Hans Kelsen and H.L. A. Hart. Although Tuori’s work is highly critical, he seems to share some fundamental theses accepted by his targets: (1) The Normativity Thesis, (2) The Social Thesis, and (3) The Separability thesis. What, then, are Tuori’s complaints against the Kelsenian and Hartian versions of positivism? He argues that the positivist description of law is inadequate, not because of what it includes, but because of what it leaves out. It describes law as a self-contained, autonomous, and united system, leaving out law’s relations to politics, questions of legal interpretation and argumentation, issues related to constitutional morality, and most of the questions related to rationality. I agree that Kelsen’s and Hart’s positivisms have very little to contribute to discussions on the most important issues of the criticism of law. Nevertheless, they have something to offer. Although they were not successful in their attempts to solve the problem of legal normativity, they made a very important contribution by pointing out that there is a genuine problem.



Keywords:
Hart (H.L.A.)legal positivismTuori (Kaarlo)

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