Conclusion

the end of legal positivism

Amy E. Varela

pp. 295-316

in: William E. Conklin, The invisible origins of legal positivism, Berlin, Springer, 2001

Abstract

The tradition oflegal positivism has faced a critical problem. How can a humanly posited norm or rule be binding unless there is some finality to legal reasoning? In order to maintain that the humanly posited norm/rule is authoritative, officials have, since Roman times, referred the grounding ofthe norm/rule to some authorizing origin. The reference to some authorizing origin of legal reasoning has allowed officials to become detached from their reasoning and, further, to objectify what one might otherwise consider the subjective posit of values and norms over others. The reference to the origin has unified the posited norms. The origin has ended the trace of one grounding to another, of one institution to another. Legal reasoning has, as a consequence, taken on a linear direction towards the origin.