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.

Toh presents an overview of the relation between legal positivism and meta-ethical theories, arguing that philosophers of law, debating the nature of law, can gain insights from a study of meta-ethics, and that one such insight, a methodological insight, is that legal philosophers can and should follow moral philosophers and give up (what he refers to as) the double-duty presumption, that is, the presumption that theories of (the nature of) law must also give answers to the usual type of questions concerning the interpretation and application of the law.

Leiter considers the relation between legal positivism and legal realism. He argues that H. L. A. Hart’s theory of law is really a species of legal realism, and that there are four ways in which this is so, namely, that the law operates primarily outside the courts; that the law is sometimes rationally indeterminate; that the law is explicable in wholly naturalistic terms; and that the law is not necessarily morally good. He also argues that Hart’s critique of American legal realism is misguided, because Hart would fail to distinguish clearly between conceptual legal realism, which is a theory about the nature of law according to which there are no legal rules and law consists in court decisions and predictions about them, and empirical legal realism, which is a claim about how it is useful for attorneys to think about law when they advise their clients and which says that it is a mistake to think that judges (and others) are bound by legal rules. As Leiter sees it, while conceptual rule-skepticism is indeed mistaken, the Americans do not embrace it, and while they do embrace empirical rule-skepticism, this type of rule-skepticism is justified.

Born to a master tailor and his wife in the provincial town of Dessau, Johann Ludwig Wilhelm Müller (1794–1827) was the sole one of their seven children to survive infancy. The family occasionally received small financial assistance from Leopold Franz III, the Prince of Anhalt-Dessau, elevated in 1807 to its Duke. The Anglophile peace-loving regent created one of the most progressive and prosperous of the smaller German states. He cultivated educational and social reforms, supported architectural and landscape design and scientific inquiry, and encouraged religious tolerance in a state that was home to congregants of several Christian denominations and a growing Jewish community. The first German-language Jewish newspaper was founded in Dessau in 1806. Müller attended the local Gymnasium, excelling in the study of languages. Following a period of university studies, military service, and scholarly Wanderjahre, he eventually settled down as a teacher in the city of his birth.

Brian considers the normativity of law within the framework of legal positivism, noting that the very idea of it has been understood differently by different authors. He proposes that we analyse the concept in terms of reasons for action, that such reasons must be something more than prudential reasons, that the proper question is whether law gives us reasons for actions of the relevant type that we would not have without law, and that Hume’s law makes this task difficult for legal positivists. He considers consequentialist justifications for the normativity of law proposed by Hobbes and Hume, Kelsen’s theory of the basic norm, Postema’s claim that the rule of recognition is a coordination convention, Shapiro’s planning theory of law, and Enoch’s triggering account, concluding that these accounts are all problematic in different ways. He observes that some authors see it as a specifically legal normativity that is neither moral nor prudential, while others conceive of it as moral normativity; he concludes that the former alternative needs elaboration and justification, while the latter is difficult to establish from within the legal positivist tradition.

This essay explores the distinction between “continuity” and “discontinuity” in the poetry and music of Winterreise. In a continuous poetic cycle, the poems progress in a logical, recognizable process where we know where we begin and end, and everything in between relates to the whole. Musical continuity likewise involves a clear sense of motion forward and reaching a goal – such as beginning and ending in the same key, or tonal coherence. In a discontinuous poetic or musical cycle, on the other hand, there is no clear motion forward from beginning to end, no clear end point, and a lack of cohesion or interconnectedness (recurring elements) over the whole. But the distinction is not altogether clear. Within a continuous cycle, interruptions do occur, and within a discontinuous cycle, elements of continuity occur as well. Ultimately, a cycle is experienced primarily one way or the other based on a number of factors, including the presence of repeated elements (continuous) or lack of repeated elements (discontinuous).

Chiassoni explains that in the early 1960s Norberto Bobbio put forward a descriptive theory of legal positivism consisting of two main parts, namely, a definition of legal positivism, according to which there is no law but positive law (the exclusivity thesis) and an analysis of legal positivism that identifies three versions of legal positivism: legal positivism as an approach to the study of law (scientific positivism), legal positivism as a theory of positive law (theoretical positivism) and legal positivism as a doctrine of obedience to positive law qua law (ideological positivism). He explains that legal positivism as an approach to the study of law involves a commitment to a value-neutral study of positive law; that legal positivism as a theory of positive law encompasses (what he refers to as) narrow theoretical positivism as well as broad theoretical positivism; and that we may distinguish between three versions of legal positivism as a doctrine of obedience to positive law qua law, namely, an unconditional version, a moderate, conditional, relative version, and a very moderate, conditional, relative version, and that these versions differ in important ways.

Marmor considers the separation thesis, which he understands as saying that whether a given norm is legally valid depends on its sources, not its merits; and this means that he is concerned with the separation thesis conceived as a thesis about legal status, not as a thesis about the content of legal statements. Observing that the distinction between sources and merits is very close to the distinction between is and ought, he considers the objection that the separation thesis cannot be upheld because one cannot clearly distinguish between sources and merits, between is and ought. He responds to this objection, however, that the separation thesis can be upheld if it is seen as an answer to the question ‘What counts as law?’ rather than to the question ‘What is law?’, and that this response is in keeping with a common wish on the part of legal positivists to provide a reductive explanation of legal validity, that is, an explanation of legal validity exclusively in terms of social facts.