The protagonist of Winterreise wanders through a landscape that is both real and imagined. Banished from one home but unable to conceive another, he follows a path that circles back on itself repeatedly, leading only to exhaustion and defeat. Yet while the singer of Winterreise appears to inhabit a lonely landscape, Wilhelm Müller’s verses and their musical setting by Franz Schubert would also have evoked a concrete social world for their audiences, that of the road (Landstrasse). The road, by its very nature, was filled with people on the move, some of them (journeymen, pilgrims) heading purposefully from one place to another, but others with no particular destination, whose poverty, criminality, or “dishonorable” status banished them from their towns and villages. These last types, the “wandering people” (fahrendes Volk), had become well established as an object of public fascination and state scrutiny by the eighteenth century.

Müller’s poetic cycle Die Winterreise and Schubert’s song cycle Winterreise bring together two themes – the winter season and the experience of travel – that both appear in earlier literature and song. This chapter explores European and especially German precursors to Winterreise, focusing on the eighteenth and early nineteenth centuries.

Troper considers five types of legal positivists in French legal thinking, namely, the exegetical school, the sociological school and Léon Duguit, Carré de Malberg, the Vichy scholars, and the analytical legal positivists. He explains that Carré de Malberg put forward a theory of positive law that aims to be descriptive, according to which positive law is a product of the will of the state and the state possesses an innate capacity to obligate the citizens by means of its laws. He points out, however, that while Carré de Malberg’s description of French positive law aims to reveal an essence of the state, in reality the description proceeds from a set of abstractions that reflect his own normative theory of the state; and that this means that Carré de Malberg, while professing to espouse a methodological version of legal positivism, is actually closer to defending ideological positivism.

Kramer explains how H. L. A. Hart reinvigorated legal positivism by disconnecting it from the command theory of law defended by his predecessors Bentham and Austin; by introducing through his own theory of law some new and fruitful concepts into legal thinking, such as the internal point of view, the distinction between primary and secondary rules, and the idea of a rule of recognition; by clarifying the meaning of and reasons behind the separability of law and morality through considering the many different ways in which law and morality are, or could be, connected; and by introducing the idea of the minimum content of natural law and clarifying the relation between this and the separability of law and morality. Kramer explains: even though a legal system can fulfil its basic function of securing the conditions of civilisation only if it includes rules prohibiting murder, assault, fraud, etc., the relevant protection provided by the legal system against such misconduct need not be extended to all groups of citizens. Consequently, because no true moral principles would permit this, Hart’s account does not reveal any necessary connections between those principles and legal norms.

Tamanaha discusses the thesis of social efficacy. Having explained the import of the thesis, he argues that it is problematic in a number of ways. To begin with, not only are many legal systems not socially efficacious, because in many situations significant parts of the population do not obey the law, but it is also the case that two (or more) legal systems may be efficacious in the same society. Moreover, he argues, law-obedience, which is required by the social thesis and which involves as a conceptual matter at least a conscious attempt on the part of the citizens to follow the law, cannot be squared with the true empirical claim that many, perhaps most, people do not really know what the law requires of them; and this in turn means that we need a different conception of social efficacy, namely, one according to which the social efficacy of law is to be found in the constitutive use of law by government officials in combination with the activities of legal professionals who work to facilitate the aims of the people and organisations that hire them.

Baum Levenbook explores another criticism made against legal positivism. As she explains, Mark Greenberg objects to legal positivism, first, that it is a mistake to hold that legal facts are determined solely by social facts and, second, that the content of authoritative pronouncements, such as statutes, is determined by their linguistic content. But, she points out, Greenberg’s first objection is premised on the mistaken assumption that the nature of law requires the connection between legal facts and the determinants of legal facts to be, as Greenberg puts it, ‘rationally intelligible’, and the second objection is based on the equally unwarranted assumption that it is part of the nature of law to operate in such a way as to ensure that legal obligations are genuinely binding.

Kirste discusses legal scholars who were active in the nineteenth and twentieth centuries, identifying four main types of German legal positivism – jurisprudential, sociological, naturalistic, and statutory positivism – and a fifth type that he calls the general theory of law. His idea is that these theorists were legal positivists because they shared an epistemological aim, namely, establishing legal science as a science in its own right, independent of both the natural and the social sciences, and because they held that the only law is positive law in the sense of enacted norms or customary norms. He considers the theories of Hans Kelsen and Gustav Radbruch as examples of legal positivism. He points out that legal positivism lost its dominance in the wake of the post-World War II revival of natural law theory but soon reasserted its influence through the likes of Ota Weinberger, Niklas Luhmann, and Norbert Hoerster. He also notes that, since the late 1960s, authors such as Peter Koller and Ottfrid Höffe have focused on overcoming the gulf between natural law theory and legal positivism.

Bix considers that Joseph Raz might not be willing to accept that legal positivism is a theory, or stance, that is sufficiently well-defined to be captured in a few main tenets, thinking of it rather as a tradition of legal thinkers held together in a rather loose way. Bix focuses his discussion on Raz’s version of the social thesis, the so-called sources thesis, according to which all law is source-based, in the sense that the existence and content of the law is determined using exclusively factual (social) considerations. Bix considers Raz’s two main arguments in support of the sources thesis – the argument from authority and the argument from different functions – as well as certain objections to these arguments put forward by other legal philosophers.

A solitary wanderer journeys through a strange, desolate landscape, bracing himself against the harsh weather. He repeatedly interrupts his travels to observe and reflect upon the natural world around him: striking landscapes, flora and fauna, and mysterious, seemingly magical atmospheric phenomena. This wanderer, of course, is the unnamed speaker in Wilhelm Müller and Franz Schubert’s Winterreise – but his fictional travels mirror in interesting ways the real-life adventures of some early nineteenth-century scientific explorers and naturalists.

While impressions can be deceptive, more often than not that very deceptiveness is significant. At a surface glance, Schubert’s Winterreise (D911) might appear to the imagination as a landscape in twenty-four monochrome studies with only the dark bark of the trees and a few black strokes, representing the crows perching on them, to contrast with the ubiquitous wintry white. Yet, on further inspection, one gradually perceives variations in shades and perspective, so that each part of the whole acquires definition and can be viewed separately. Aurally, one is struck by the unremitting bleakness and severity of the ensemble, which evokes a barren expanse where the flowers of melody seem unable to grow or, if they do, are soon condemned to wither. Sheer quantity is of consequence: twelve parts may be considered and recollected individually, but confronted with double that number, perception shifts towards a more global grasp of its object.

Waluchow considers inclusive and exclusive legal positivism, first explaining that the idea behind the separation thesis is that there is nothing in the bare notion of law that guarantees that law has any degree of moral merit. He presents Ronald Dworkin’s challenge to the separation thesis, i.e., that since law necessarily consists not only of the so-called settled law (statutes, precedents, etc.) but also of the principles of political morality that are part of the best constructive interpretation of the settled law, the connection between what the law is and what the law ought to be is much stronger than the separation thesis allows for. He considers responses to Dworkin’s challenge: exclusive positivists insist that the separation thesis, properly understood, has it that, as a conceptual matter, legal validity cannot depend on morality, while inclusive positivists maintain that the thesis has it that legal validity can, but need not, depend on morality. Finally, Waluchow rejects Joseph Raz’s argument from authority, which supports the exclusivist interpretation, while accepting Jules Coleman’s argument from convention, which supports the inclusivist interpretation.

This chapter explores Schubert’s Winterreise from a number of angles. First, under the heading of “Connecting Threads,” I consider overarching elements in text and music. Text and music do not necessarily coincide in all dimensions (such as their timeframe, or their structure), but may gain added power from being non-congruent. Secondly, I examine Schubert’s deployment of the “fingerprints” of his personal style: these too contribute to the intense impact of Winterreise.1 In setting the twenty-four poems of the finished cycle, Schubert not only created an alliance between music newly conceived for the purpose and Müller’s words; he also, importantly, formed an alliance of the words with core features of his compositional style at a ripe stage of its development.

The devastating impact of Franz Schubert’s Winterreise arises from our identification with its primary persona. We walk with the wanderer, privy to his thoughts, and imagine ourselves in his shoes, psychologically associating ourselves with the authorial creation. Schubert’s Die schöne Müllerin also inspires identification, but our rapport with its central character gradually grows tenuous. We witness the journeyman’s enthusiasm, but become troubled by his choices and perceptions, wondering why common sense or rationality doesn’t intervene. Both cycles set Wilhelm Müller’s poetry, feature rejected unfortunates, and address mortality. Yet we regard and respond to their focal figures differently. Die schöne Müllerin solicits sympathy for its greenhorn, encouraging us to understand his feelings and regret his unhappiness.

Guastini argues that legal positivism was first conceived as a type of legal philosophy by Norberto Bobbio in 1950, and that Bobbio later distinguished between methodological positivism, theoretical positivism and ideological positivism. For Bobbio, methodological positivism is a (normative) view about legal scholarship, namely, that it should be descriptive; that theoretical positivism is a substantive theory of law, according to which law is a set of commands issued by the sovereign, legal interpretation is a cognitive enterprise, and the application of law is a matter of deduction; that ideological positivism is the view that one ought to obey the law regardless of its content; and that all three types of legal positivism share the view that there is no such thing as natural law. As Guastini explains, contemporary Italian legal philosophers reject theoretical positivism and mostly conceive of legal positivism along methodological lines, holding that there is no natural law, that it is important to distinguish between expository and censorial jurisprudence (in Bentham’s terminology), and that there is no obligation to obey the law all things considered or regardless of the law.