This chapter explores the complex relations between the city of Athens (asty) and its large territory (chora), which formed the two essential entities of the Greek polis.

Sieckmann argues that the central claim of Robert Alexy’s criticism of legal positivism is that there is a necessary connection between morality and the content of law, and that the separation thesis is thus false. In his earlier writings Alexy adduced three distinct arguments in support of the connection thesis: the argument from injustice, the argument from principles, and the argument from the necessary claim of law to correctness. He later substituted for these a more general argument from the dual nature of law. Alexy situates his critique within the perspective of a participant, as distinguished from the perspective of an observer. Sieckmann maintains that Alexy changed the focus of the debate about legal positivism from an exclusive concern with questions of legal validity to a more general concern with questions of the nature of law by emphasising that in addition to the usual classifying connections between morality, on the one hand, and legal systems, acts and norms, on the other, there are also qualifying connections. Sieckmann concludes that Alexy showed legal positivism to be a not fully satisfactory theory of law for those adopting the participant’s perspective.

A book such as this confirms the canonical status of Winterreise. The song cycle is widely acknowledged to be a great work, as reflected in its constant presence on concert platforms and in recording catalogues, its influence on other composers, and its continuing fascination for scholars. Yet it took time before Winterreise achieved its celebrated status. Schubert’s contemporaries were initially uncertain about the merits of the “terrifying songs,” and full performances did not take place in public until the 1850s. The 1928 centennial commemoration of the composer’s death encouraged multiple live and recorded performances of the cycle, but only after World War II, with the invention of the long-playing record, did recordings by internationally celebrated advocates such as German baritone Dietrich Fischer-Dieskau establish Winterreise’s canonic status.

Bertea considers two ways of understanding the social thesis, along the lines of either legal conventionalism or the conception of law as a shared activity, arguing that on neither interpretation of the social thesis can legal positivism account for the necessary normativity of law, that is, for the necessary capacity of law to impose (genuine) obligations and confer (genuine) rights on both officials and citizens. He points out that there are fundamentally two ways in which legal positivists conceptualise legal obligation – either as a genuine requirement set forth in the law or as a perspectival requirement – and that on the former conceptualisation, legal obligations will bind only those who are committed to the legal enterprise, that is, the officials, and that on the latter, they will bind only those who adopt the standpoint of the legal system itself. Further, he objects that on the former conceptualisation, legal positivism fails to account for legal obligations that apply to the citizens, and that on the latter interpretation, it turns out that law might not be necessarily normative in the first place.

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.