This paper critically examines Kaarlo Tuori’s account of legal positivism, highlighting its strengths and theoretical ambiguities. After summarizing the four core theses of positivism—normativity, the social thesis, the separation between law and morality, and the descriptive thesis—I show how Tuori revises these theses in his concept of “critical legal positivism”. This approach overcomes the limitations of Kelsen’s and Hart’s theories by emphasizing the multilayered nature of law and the central role of socio-legal practices and legal culture. Specifically, Tuori criticizes traditional positivism for its inability to adequately explain legal normativity and its connection to the perceived legitimacy of law among citizens. While acknowledging the originality and relevance of Tuori’s framework, the paper raises several objections, specifically, questioning the ambiguity of the normativity thesis, the underestimation of conflict within legal and social practices, and the unclear treatment of the relationship between law and morality. Furthermore, the paper defends the importance of methodological positivism and the distinction between descriptive and evaluative analysis. I ultimately conclude that Tuori’s theory does not constitute a genuine “third way” between positivism and natural law theory, but rather a revised version of legal positivism adapted to contemporary legal developments.
In a contribution to this volume, Himma argues for what I call “the liabilities view” for the bindingness of obligations. Put roughly, according to this view, obligations bind in virtue of their detrimental liabilities because of the reasons that we have to avoid them. In this paper, I first raise some doubts against this view. I then sketch an alternative view in response to these doubts. However, I do not go on to argue that this alternative view is superior to the liability view. Instead, I raise a worry about the alternative view in the latter part of the paper. I then go on to suggest that perhaps there is more than one general concept of obligation and we need both views to properly account for them.
The present work explores aspects of the nature of legal normativity, approaching the topic from the context of claims about the variety of and interactions among our multiple normativities. The article offers some reflections on the multiplicity of normative systems and normative claims and discusses a number of ways in which that multiplicity has been reflected in well-known debates within legal philosophy. Among the theories and theorists featured are the American and Scandinavian legal realists, along with Hans Kelsen, H. L. A. Hart, Mark Greenberg, and Joseph Raz. The article ultimately returns to the controversial claim that legal normativity (legal obligation) is sui generis, requiring no reduction to or translation into some other form of normative or empirical discourse.
Kaarlo Tuori's recent book on legal positivism offers a good opportunity for revising positivism's merits as the hegemonic concept of law in modern times. The paper especially deals with two interesting theses defended in the book. The first thesis is a view of legal realism as opposite or alternative to positivism, which is identified as a concept of law where rules are the basic material of law and normativity is equivalent to a structure of rules for directing conducts. The second thesis is the sterility of conceptual analysis in jurisprudence, whereby the concept of law is studied and assessed through an essentialist approach to the "nature" of law, this being now mostly taken in the Anglo-American legal theory. The paper on the one hand discusses the too strong distinction between legal realism and positivism proposed, defending rather a close connection between the two perspectives. On the other hand, the critical consideration of conceptual analysis is seen as a relevant and fruitful contribution of Tuori's book and is further discussed.
In this contribution, I intend to introduce the bare bones of a theoretical account of the distinctive kind of obligation engendered by legal institutions and practices. The proposed account is driven by a specific methodology — to which I will refer below as “presuppositional interpretation” — that I consider most adequate to the theoretical study of law. The main assumption underpinning the argument deployed in what follows is that there is an inextricable link — a relationship of conceptual co-dependence — between the methodology used to approach legal issues and the explanation of legal obligation.
