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2 - Social Practices

from Part I - Sociality

Published online by Cambridge University Press:  03 September 2021

Kaarlo Tuori
Affiliation:
University of Helsinki
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Summary

In accordance with its dichotomous ontological premises, mainstream positivism of the preceding century was not interested in conceptualising the realisation of law. It considered, though, compliance of social actors with law in general and individual norms in particular necessary for law’s efficacy and as such a precondition for legal validity. As a rule, its interest did not extend to exploring the process of realisation; that is, the transition from abstract norms to norm-conforming behaviour. Of course, exceptions exist. Rights, duties, and legal relationships are major steps in the transition. In the wake of Jeremy Bentham, John Austin and Wesley Newcomb Hohfeld, analytically minded positivists have continued elaborating these concepts. Yet analysis has focused on the logical relations between the concepts so that, typically, rights, duties, and legal relationships have been detached from their social context. In this respect, too, Kelsen held an extremist position. For him, ‘right’, ‘duty’ and ‘legal relationship’ connoted relationships between legal norms. In the realist camp, especially in Scandinavian Realism, the analytical approach has also enjoyed popularity. However, Scandinavian realists’ realism was largely confined to defining the basic concepts with reference to predictable reactions from the side of authorities, thus allegedly satisfying empiricist criteria whose fulfilment the scientific character of legal scholarship was seen to require.

Type
Chapter
Information
Properties of Law
Modern Law and After
, pp. 63 - 76
Publisher: Cambridge University Press
Print publication year: 2021

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  • Social Practices
  • Kaarlo Tuori, University of Helsinki
  • Book: Properties of Law
  • Online publication: 03 September 2021
  • Chapter DOI: https://doi.org/10.1017/9781108953436.005
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  • Social Practices
  • Kaarlo Tuori, University of Helsinki
  • Book: Properties of Law
  • Online publication: 03 September 2021
  • Chapter DOI: https://doi.org/10.1017/9781108953436.005
Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Social Practices
  • Kaarlo Tuori, University of Helsinki
  • Book: Properties of Law
  • Online publication: 03 September 2021
  • Chapter DOI: https://doi.org/10.1017/9781108953436.005
Available formats
×