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Positivism Buried Alive? In Defence of Inclusive Legal Positivism

100%
Dyrda A.
Studia Prawnicze
|
2010
|
issue 2(184)
5-36
EN
The efforts taken by the "soft" (inclusive) positivists (H.L.A. Hart's followers, ie. J. Coleman, W. Waluchow, M. Kramer, K. E. Himma) to defend the legal positivist position (the separability thesis, the social sources thesis) are combined with theoretical references to the moral arguments which are present in judicial practice. Therefore, the inclusive positivists treat the relationship between law and morality as a contingent relationship and try to justify it on the basis of the system’s overriding rule of recognition. This position, as an attempt to find the "golden mean" in theory of law, is criticized both by non-positivists and "hard" positivists. For instance, R. Dworkin or L. Morawski claim that, despite its declarations, soft positivism actually does not respond to the requirements of modern legal practice and is a "degenerated" and stagnant research program. On the other hand, J. Raz contends that due to the incorporation of morality, soft positivism is no longer a real positivism. The article presents a defense of soft positivism, especially against its non-positivistic critics, as well as a version of soft positivism, which can be called a "constructive" one (V. Villa). It also shows that soft positivism, as being consistent with the "spirit" of positivism and complying with the requirements of the present judicial practice, may be justified by reference to postmodern thinking.
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Główne typy metafizyki analitycznej

88%
Szubka T.
Filo-Sofija
|
2011
|
vol. 11
|
issue 4(15)
849-864
EN
In a widespread general view about analytic philosophy it is often emphasized the supposed animosity or mistrust of that movement towards metaphysics. That opinion is in many respects one-sided and incorrect. First, one cannot find that animosity towards metaphysics in the works of G.E. Moore and B. Russell, the founders of modern analytic philosophy. Of course, they criticized the speculative, Hegelian metaphysics of their idealistic predecessors, but they did it in order to defend metaphysics of a different kind, more careful, empirical, and realist one. Moreover, even if it is to some extent true that over a few decades analytic philosophy was dominated by the attitude of mistrust towards more theoretical and comprehensive metaphysical investigations, it should be stressed that that attitude has almost completely disappeared in the last fifty years. Metaphysics has again regained the status of central and vigorously pursued philosophical discipline. One of the main originators of that metaphysical turn in contemporary analytic philosophy was Sir P.F. Strawson, the Oxford philosopher, who in 1959 forcefully articulated the idea of descriptive metaphysics. A somewhat similar way of doing metaphysics was later developed in the writings of D. Davidson, M. Dummett, and – in certain respects – H. Putnam. One may say that all those thinkers have attempted to identify the basic structure of reality by describing and elucidating the basic structural features of our thought and talk. Since in such a method of doing metaphysics one can discern some characteristic marks of Kantian transcendental arguments, there is a point to call it analytic-transcendental metaphysics. In a completely different way metaphysics has been pursued by those analytic thinkers who are under heavy influence of the conception of philosophy put forward by W.V. Quine. For Quine philosophy, including metaphysics, is continuous with science, and, to be more precise, constitutes the theoretical end of science. Among many followers of that kind of metaphysics, that may be called analytic-naturalistic one, there are D.M. Armstrong and D. Lewis. The paper presents those two varieties of analytic metaphysics, and succinctly discusses their main difficulties. Subsequently, it mentions those examples of contemporary analytic metaphysics that, for one reason or another, do not belong to either of those two varieties. The paper ends with a brief appendix discussing the most recent revival of metaphysics within the analytic movement and a critical response toit from the deflationary point of view.
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