Seminar 1: On legal positivism and (legal) pragmatism - Spring Seminar Series on 'Law, Economics and Philosophy'

Presenter: External lecturer, PhD, Johan Gersel, MPP, CBS.

Title: On legal positivism and (legal) pragmatism.

Abstract:

A central claim of legal positivism is that the determinate content of the law is an empirically determinable issue. The goal of legal science is to make the content of the law explicit. Whether an action is legal or illegal, is thought to be a fully observable matter which is determined by investigating legal practices and legal documents. In concordance, the task of judges is to judge in accordance with existing law by issuing verdicts tracking the observable content of the law. An aim of legal positivism is to limit the reasons that judges must take into account when issuing verdicts, such that their goal becomes solely to track, rather than also to develop, existing law. Law development is intended to be exclusively in the hands of the legislative branch of government. In this talk, I will challenge the feasibility of legal positivism. A presumption of legal positivism is that existing legal texts and practices have determinate content which seamlessly tracks onto novel cases. Inspired by Wittgenstein, contemporary work by Robert Brandom and Charles Travis within rationalist pragmatic theories of content challenge this presumption. According to Brandom and Travis, there will always be an implicit context surrounding the use of a concept which allows for various interpretations as to its applicability to a novel case. No amount of scrutiny of past usage will enable us to overcome such empirical underdetermination. Instead, every application of a concepts, legal or otherwise, should be seen as the matter of incurring an obligation to rationally defend the use of this concept in discourse with one’s linguistic community. If this approach to the theory of content in general is correct, then the aspirations of legal positivism are doomed to fail. No amount of scrutiny of legal documents and prior legal practice will enable judges to merely apply the law, without simultaneously playing an active and creative role in its continuous development. Moreover, with such responsibility on their shoulders, judges can no longer avoid taking into account the full gamut of moral, traditional, natural, and aesthetic reasons, that otherwise guide human practical reasoning, when they pass verdict on novel cases. 
 

We hope to see many in person but online participation is also possible. The link for online participation is here: https://cbs-dk.zoom.us/j/69662154119. 


The seminar will be held in Porcelænshaven 18B, 1.154, Frederiksberg (2000).
 

For (free) registration: https://cbs.nemtilmeld.dk/391/.

Please register before March 20 at 12 pm, if you want a beverage during the break.