We think we know what Winterreise is: a formal live performance by a classically trained baritone and concert pianist in a recital or concert hall, featuring all twenty-four songs of the cycle presented without interruption or deviation from the printed score in Schubert’s original publication order. But in the full sweep of Winterreise’s reception history since 1827, performances satisfying all or even most of these conditions have been much less common than we might assume. The fact is that there are just as many Winterreises as there are performances, each informed by its own set of social, cultural, personal, historical, and technological factors. In this survey of Winterreise’s life in performance from Schubert’s day up until the present, we will observe how the cycle’s meaning is fundamentally dependent upon the manner and context of its presentation: performance as reception.

Winston argues that Lon Fuller’s critique of legal positivism was rather special in focusing on issues that lay beneath the surface of the usual intramural disputes, and thus related only indirectly to what positivists, such as Kelsen and Hart, said explicitly when expounding their views. Winston explains that, as a pragmatist, Fuller largely eschewed conceptual or semantic questions, focusing instead on questions of methodology and governance, in particular the adequacy of a scientific approach to understanding human society and the role played by agency and purpose in ordering civic life. In a phrase, Fuller faulted legal positivists for encouraging the kind of social engineering perspective reflected in bureaucratic/regulatory states. The importance of a pragmatic jurisprudence – and its superiority over other social sciences – lies precisely in the practical experience and concerns which lawyers possess (and other social scientists lack) and which they bring to bear in fashioning the participatory social architecture that is better at protecting human freedom.

Spaak argues that legal positivists need to consider the social thesis in light of an important distinction between two levels of legal thinking, namely, the level of the sources of law (existence) and the level of the interpretation and application of law (content), and that they have good reason to restrict the scope of the social thesis to the level of the sources of law. He argues that by restricting the scope of the social thesis in this way, inclusive legal positivists can avoid having to assume that moral judgements can be true in a non-relative way, that exclusive legal positivists can avoid having to say that judges are creating new law instead of applying pre-existing law, if and insofar as they invoke normative considerations in their interpretation and application of the law, and that both inclusive and exclusive legal positivists can avoid Dworkin’s theoretical disagreement objection.

If one reads the poem titles of Wilhelm Müller’s earlier cycle Die schöne Müllerin from its original edition and the titles of the songs in Schubert’s published score, one quickly notes that while Schubert omitted the long Prologue and Epilogue and three other poems, he retained all the rest of the Müllerin poems and kept them in the same order as the poet’s. Schubert did a bit of judicious cutting, but left the poetic cycle largely intact.

Starting out from the assumption that legal positivism is premised on the assumption of a strict separation between the world of law, the world of morals and the social or ethical world, Kersten explains that George Jellinek’s phenomenological theory of reflective legal positivism aims to answer the question of how the world of law is connected to and can respond to changes in the social world. The general idea of Jellinek’s legal positivism, Kersten explains, is that a state has two sides – a legal side and a social side – and three elements – people, territory and political power – and that these elements have to be structured and defined with the help of the concept of legal auto-limitation of political power, that is, the concept of the state’s capacity to limit its own power by incurring legally binding obligations. On this analysis, Kersten points out, the central element in Jellinek’s legal positivism is that of political power, which structures and defines the territory and the people (the citizens) and also structures and defines the state by binding it to legal rules, especially constitutional rules.

Schauer discusses normative positivism, explaining that this type of positivism comes in two main versions, namely, in the shape of a prescription to legal actors and in the shape of a prescription to legal institutional designers. He argues that a full appreciation of the artefactual nature of law leads to the conclusion that a culture can modify its concept of law in order to make it as useful a concept as possible, and that if normative positivism is a plausible position, it follows not only that choosing a concept of law on moral grounds is a moral position but also that choosing to see the enterprise of legal theory in a normative way itself amounts to a normative position.

Postema argues that – contrary to the received opinion – we may view contemporary, post-Hartian British legal positivism or, more broadly, post-Hartian British jurisprudence, as having developed naturally from the legal philosophies put forward by Matthew Hale and Thomas Hobbes in the seventeenth century, which in turn were part of an earlier and philosophically more ambitious, pre-positivist tradition, the thetic tradition, dating back to Jean Bodin, Marsilius of Padua and, ultimately, to Thomas Aquinas. Postema explains that if we do, we will see that instead of being a quirky ancestor of the British positivist tradition, Bentham appears as the high point of the thetic tradition, which came to an end when Austin decisively disengaged British jurisprudence from Bentham’s legal philosophy. We see, then, Postema continues, that Austin’s jurisprudence changed the direction of British jurisprudence decisively from the thetic tradition to a positivist approach to the study of jurisprudence, one that continues to this day and sees jurisprudence as separable from moral philosophy and metaphysics, as well as history, social theory and comparative studies.

As Lobban explains, Austin thought of jurisprudence as the study of concepts, principles and distinctions that are common to various, possibly only mature, legal systems. He considers Austin’s command theory and concept of a sovereign and Austin’s thoughts on the relation between law and morality and on legal reasoning and judge-made law. On Austin’s analysis, laws properly so-called, as distinguished from rules of positive morality, are commands issued by the sovereign to the subjects, and that something is a command only if there is a sanction behind it. Lobban considers the objection that the idea of a habit of obedience cannot account for the legal authority of the lawmaker, for the idea of a succession of lawmakers or for the idea of a legally limited lawmaker. Austin argued that there is no necessary connection between law and morality, defended a version of rule-utilitarianism and held that the principle of utility is a good index to divine law. He advocated a textual approach to the interpretation of statutes, holding that the law in a precedent is to be found in its ratio decidendi and that customary rules do not become legal rules until they are recognised by courts.

“Green defends a ‘Kelsenian’ non-naturalist and non-reductive version of legal positivism that, he argues, is similar to the pure theory of law expressed in Hans Kelsen’s works. Kelsen is a peculiar legal positivist by Anglophone standards because he rejects the social thesis. As Kelsen sees it, law does not ultimately depend upon social facts about a community’s legal practices. The legal order is normative and so stands outside the spatiotemporal and causal world of nature. Nevertheless, Kelsen can be described as a positivist for two reasons. First, he accepts the separation thesis: law does not ultimately depend upon moral facts. Second, he accepts what Green calls the ‘positivity thesis’. Green argues that the heart of the Kelsenian argument against the social thesis is a form of legal anti-psychologism that is similar to the logical anti-psychologism offered by Frege. A challenge to this Kelsenian position is the view that the non-natural facts upon which legal inferences are based concern the concept of law, not a legal order. Green argues that this approach can be successfully resisted by invoking Kelsen’s doctrine of the unity of law.”

Moreso writes about a theory of law related to legal positivism that has been highly influential in the Latin world, namely, Luigi Ferrajoli’s garantismo, or theory of constitutional guarantees or warrants. He explains that the word ‘garantismo’ suggests a conception of law as a system of constitutional guarantees of human rights, and distinguishes two main ideas in Ferrajoli’s account: the separation thesis and the distinction between valid law and law in force. For Ferrajoli, the very idea of constitutional rights gives rise to a distinction between validity and social efficacy, because even though the legislature might enact a statute that violates a constitutional right, the statute might become socially effective, and this means that there might be legally invalid norms that are nevertheless in force. Moreso also introduces Ferrajoli’s distinction between a constitutionalism of guarantees and a constitutionalism of rights, which he criticises, arguing, in particular, that accepting the rule/principles distinction does not have to lead to lack of legal certainty. Finally, he points out that Ferrajoli is an inclusive legal positivist.

Borowski argues that Radbruch’s very important criticism against legal positivism is to be found not in his writings on legal positivism but in his own legal philosophy, especially the so-called Radbruch formula; that the Radbruch formula entails a rejection of the separation thesis on both the level of the criteria for the identification of valid legal norms and the level of the nature of law; and that Radbruch’s explicit claim that legal positivism was to blame for the situation in Germany is unconvincing because the Nazis did not, as a matter of fact, hold that law is law and should be applied according to its plain meaning in all circumstances, but were actually willing to apply a statute contrary to its wording if this suited their purposes.

Schofield explains that Bentham made a fundamental distinction between expository jurisprudence, which concerns the law as it is, and censorial jurisprudence, which concerns the law as it ought to be, and between local and universal expository jurisprudence, and that he took the subject matter of universal expository jurisprudence to be terms (or concepts) such as ‘obligation’, ‘right’ and ‘validity’ that are common to all legal systems. He points out that Bentham introduced a method for analysing or clarifying such terms, namely, the method of paraphrasis, and argues, contrary to Hart, that Bentham was neither a substantive nor a methodological legal positivist. Bentham’s utilitarianism, characterised by its naturalistic basis and its claim to govern every aspect of human action, led him to conceive of value judgements as a form of empirical statement; hence the idea of a conceptual separation of fact and value, as required by substantive legal positivism, would have made no sense to him. Moreover, Bentham would not have accepted the methodological view that expository jurisprudence is a value-neutral enterprise, since it was undertaken just for its utility-promoting value.