lunes, 22 de agosto de 2011

Paulson: sobre positivismo

Comparto mi grabación y handout sobre la conferencia de Stanley Paulson en el IVR

Paulson 1 Handout

Paulson 2 Handout

IVR Frankfurt 2011
The Very Idea of Legal Positivism
Prof. Dr. Dr. h.c. mult. Stanley L. Paulson, Washington University in St. Louis / USA
Date WED 17 Aug 2011
Time 11.30 h – 12.15 h
Location HZ 1/2

Legal positivism has been discussed, for the most part, in a vacuum. Still, there is a standing
presumption, however rarely articulated, that there are ties between legal positivism and positivism writ large in the greater philosophical tradition, that is to say, between legal positivism and naturalism.
What sorts of ties? In the present paper, I offer an answer in two parts. In Part One, I draw on John Austin’s legal philosophy, establishing that a positivist legal philosophy fits into the greater rubric, positivism writ large, or – my substitution – naturalism. And, in Part Two of the paper, I address the substitution of naturalism for positivism writ large.
In Part One, two theses are of special interest, with the second thesis following from the first. My first thesis: Austin’s naturalism – his “reduction”, at two junctures, of ostensibly juridico-normative concepts to matters of fact (namely, to fear and to habit) – is, as he contends, sufficient to make out his case on the nature of law. My second thesis, following from the first: If Austin’s move is sufficient, then no thesis respecting a non-contingent link between morality and the law can be necessary to the explication of the nature of law. These two theses, taken together, make a point of genuine significance. That is, if these two theses are indeed correct and if Austin’s legal philosophy is representative of legal positivism, then the celebrated “separation principle” is not doing the lion’s share of the work in legal positivist circles after all. Rather, the separation principle is but a corollary of naturalism, the overriding view.
Parenthetically, I might add a note on Hans Kelsen. Just as Austin is representative of legal positivism, Kelsen is utterly unrepresentative – and is known to be unrepresentative. In particular, the idea that the separation principle is but a corollary of naturalism can scarcely be attributed to him. Of course Kelsen defends the separation principle, but his position represents, inter alia, a wholesale rejection of naturalism.
In Part Two of the paper, I return to the question posed by my substitution of naturalism for positivism writ large. Is the substitution defensible? This question takes us to the history of ideas and the history of philosophy. A preliminary point is as important as it is obvious: These “ism”-labels in philosophy – “positivism”, “naturalism”, “empiricism”, and the like – are, without exception, very general, and it would be a mistake to contend that this or that definition of an “ism”-label counts as the characterization of the view so labeled. I illustrate the point by turning to Willard Van Orman Quine, the “father of contemporary naturalism”. Quine understands naturalism as the appeal to the sciences, contending that naturalism assimilates epistemology to “empirical psychology”. “[T]he epistemological question”, Quine writes, is “a question within science”, the question of “how we human animals can have managed to arrive at science from such limited information. Our scientific epistemologist pursues this inquiry … Evolution and natural selection will doubtless figure in this account, and he will feel free to apply physics if he sees a way.” (Quine, “Five Milestones of Empiricism” [first publ. 1975], in Quine, Theories and Things, Cambridge, Mass. 1981, pp. 67-72, at 72). Austin, however, has no concern whatever with the empirical sciences. My point here is that if one were to confine naturalism to Quine’s
view of it, the idea of bringing Austin within the rubric of naturalism would be well nigh absurd.
To repeat, Quine’s naturalism counts against fitting Austin’s legal philosophy into a naturalistic
framework. Naturalism, however, is greater than Quine, thanks not least of all to the extraordinary role he played in begetting it. Quine’s own view counts today as one prominent characterization of naturalism, and David Hume’s view, now widely characterized as naturalism but clearly not to be understood as an appeal to the empirical sciences, represents a different species of naturalism. Barry Stroud, in his well-known book on Hume, makes out the case for treating Hume as a naturalist. “Of all the ingredients of lasting significance in Hume’s philosophy I think [his] naturalistic attitude is of the greatest importance and interest … He was interested in human nature, and his interest took the form of seeking extremely general truths about how and why human beings think, feel and act in the ways they do … These questions were to be answered in the only way possible – by observation and inference from what is observed.” (Stroud, Hume, London 1977, at p. 222) Austin, too, rests his case on observation and inference. And his ties to the tradition in English philosophy – Jeremy Bentham and John Stuart Mill, to name only the most prominent figures – are well known. And if, beyond the tradition in English philosophy, Austin is also representative of legalpositivism generally, then his naturalism reaches to legal positivists generally. At this point, a host of figures on the European continent come into play. My favorite example is Georg Jellinek.

About the author:
Stanley L. Paulson, born in Fergus Falls, Minnesota, in 1941, studied philosophy at the University of Minnesota and at the University of Wisconsin, where he was awarded the Ph.D. He then studied law, completing the professional programme at the Harvard Law School. Paulson has published widely, in both English and German, on issues in European legal philosophy and legal theory, with special attention to the work of Hans Kelsen. Along with other current projects, Paulson, together with Bonnie Litschewski Paulson, has signed a contract with the Oxford University Press for a new translation of the second edition of Kelsen’s Reine Rechtslehre (1960). In 2003, Paulson was awarded the Research Prize of the Alexander von Humboldt Foundation (Bonn), and he has held fellowships and grants from the Humboldt Foundation, the Rockefeller Foundation (New York), the Max Planck Society (Munich), the National Endowment for the Humanities (Washington, D.C.), and the Fulbright Commission (Vienna, Paris, Jerusalem, Bonn). For many years Paulson taught at Washington University in St. Louis, where he was Professor of Philosophy, and William Gardiner Hammond Professor of Law. Presently he is Mercator Guest Professor in the Faculty of Law, University of Kiel.

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