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Mitchell Berman: 'Principled Positivism'

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University of Surrey School of Law

Frank Whittle Building (AB)

Fifth Floor

Guildford

GU2 7XH

United Kingdom

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It is our pleasure to invite you to a Hart Seminar by Mitchell Berman. This is an optional pre-read seminar, and the reading will be circulated one week prior to the event.

Abstract: This article presents a new theory of legal content—a novel account of how legal norms gain their contents, or are what they are. On the view introduced here, dubbed “principled positivism,” decisive legal norms (“rules”) are neither validated by a set of criteria (contra Hart) nor justified by moral principles (contra Dworkin). Instead, they are partially determined by the aggregation or accrual of weighted legal norms (“principles”) that are themselves grounded in social facts—namely, their being “taken up” by participants in legal practice. Principled positivism is a natural response to the challenges that Dworkin pressed against Hartian positivism in The Model of Rules I. That it has not yet been recognized as a distinct and highly plausible jurisprudential option is, this article argues, a consequence of some widespread misunderstandings of that seminal paper. Accordingly, this introductory presentation of a new version of legal positivism amounts as well to a reinterpretation, and proposed resolution, of the opening salvo of the Hart-Dworkin debate.

Mitchell Berman is the Leon Meltzer Professor of Law and Professor of Philosophy at the University of Pennsylvania. He writes and teaches in American constitutional law, constitutional theory, philosophy of criminal law, general jurisprudence, and philosophy of sport. His work and thinking in these diverse fields is unified and shaped by his interest in deepening our understanding of normativity and normative systems. Professor Berman’s scholarship has addressed topics including justification, coercion, desert, blameworthiness, cheating, blackmail, and refereeing practices in professional basketball.

Professor Berman's seminar is part of our Hart Seminar Series, which features a diverse group of leading scholars working at the intersection of law and philosophy. Hart Publishing contributes generous support to make the seminar series possible.

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University of Surrey School of Law

Frank Whittle Building (AB)

Fifth Floor

Guildford

GU2 7XH

United Kingdom

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