c o n t e n t s 16 Definitions of Law:The Real Difference between Natural Law and Legal Positivism Mutual Inconsistencies of Natural Law and Legal Positivism The Scientific Necessity of a Non-transcendental Philosophy of Law The Current Status and State of Jurisprudence Legal Theory i n a Nut she l l [1] Critique of Legal Science and the Will-theory of law: “Positive law is not a declaration of will from the side of the state” Fundamental Elements of the Will-theory Philosophical Reasons for the Critique of Legal Positivism Imperative-theory and Declarative-theory Circular Definitions and Unnecessary Hypotheses in the Non-metaphysical Explanations of the Law-makingWill TheWill of the State Determined by Law The Law-makingWill:An Autonomous Spiritual Reality Sociological Positivism and Sociological Jurisprudence - Non-circular Definitions of the Law-makingWill [2] Rejecting the Corollary to the Will-theory: Positive Law is not: “… an authoritative prescription of each person’s rights and duties.” Residual Natural Law Theory in Positivism [3] The Real Legal Order: Positive Law: “… is only a system of rules for the so-called organs of the state - themselves defined in the rules - a system of rules which is actually carried through.” [3.1] Positive Law: “is only a system of rules for the so-called organs of the state - themselves defined in the rules” [3.2] Positive Law is: “a system of rules which is actually carried through” The Legal Order [4] Critique of Legal Science: “The idea of rights in another sense than the advantages which the individual is granted through the system of rules, is an idea of super-sensible powers. And since the super-sensible cannot be conceived alongside the sensible, every such idea is false.” The Ideas of Rights and Duties - Logical Inconsistencies and Insufficient Correspondence between Legal Theory and the Facts of Law The Rights of Property,Things, and Possession as Natural Rights 2.1 2.1.1 2.2 2.3 3 3.1 3.2 3.3 3.4 3.4.1 3.4.1.1 3.4.1.2 3.4.1.3 3.5 3.5.1 3.6 3.6.1 3.6.2 3.6.3 3.7 3.7.1 3.7.2 312 314 317 319 322 324 325 326 328 330 331 335 336 343 343 347 349 353 353 356 357 359
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