Post legal positivism: new paradigm of legal science (jurisprudence) and practice in Brazil

The relation between law, moral, society and science is shifting in Brazil as it is changing in democratic contemporary societies. This paper proposes to reflect about this change in the Brazilian legal and social context. Jurisprudence and legal practice have been transformed intensively after the Brazilian redemocratization that began in 1985 and Federal Constitution of 1988. In the field of Jurisprudence (Legal Theory), a new legal theory called post-positivism progressively has been overcoming legal critical studies and legal positivism. In recent years, ideas as any moral values can be improved by law (positivism) or law is one of many oppressive institutions in capitalist society (legal critical studies – Marxism) have been losing place in legal theory. Nowadays, when Brazilian Constitution implements just society and legal system, different from the authoritarian military regime (1964 – 1985), it is difficult to work with a complete relativistic idea of law (positivism) or difficult to accept that law is necessarily oppressive in capitalistic societies. Otherwise the idea of science in law at post-positivistic point of view try to overcome in a dialectic way a pure science methodology (normativistic positivism) and the complete political and economic studies of law (critical legal studies – Marxism). After that, the text will show that Brazilian legal practice have changed intensively after post positivistic methodology of law and will reflect about same dilemmas of post-positivism in Brazil in the legal theory and practice

OVERCOMING POSITIVISM IN ECONOMICS: AMARTYA SEN'S PROJECT OF INFUSING ETHICS INTO ECONOMICS

Logical Positivism, which arose in philosophy early in the twentieth century, proclaimed the sharp distinction between facts and values. Despite objections at the time, positivism was imported into economics in the 1930s. Over time, objections lessened; economics was transformed and ethical considerations were driven out of its core. In the 1950s, debates about positivism arose within the discipline which had exported it. According to the American philosopher Hilary Putnam, the fact/value distinction is now discredited in philosophy. If that is so, the methodological foundations of contemporary economics are also discredited. In this article I examine Amartya Sen’s moral science of economics. First, I will present his historical account of the connections between economics and ethics. Sen claims that there was a close connection between the two until positivism was imported. Second, I will sketch some of Sen’s ethical objections to modern economics, which is still suffering from positivism. Finally, I will lay out some of his ideas on how economics can be returned to an ethical path. Once the ground has been cleared of positivism, ethics can re-emerge in economics in various ways. One path has been marked out by Sen.Teaching/Communication/Extension/Profession,

Natural Law Ambiguities

I share with Fred Schauer the relatively unpopular belief that the positivist insistence that we keep separate the legal is from the legal ought is a logical prerequisite to meaningful legal criticism, and therefore, in the constitutional context, is a logical prerequisite to meaningful criticism of the Constitution. As Schauer argues, despite the modern inclination to associate positivism with conservatism, the positivist separation thesis, properly understood, facilitates legal criticism and legal reform, not reactionary acquiescence. If we want to improve law, we must resist the urge to see it through the proverbial rose-colored glasses; we must be clear that a norm\u27s legality implies nothing about its morality. To reverse the classical natural lawyer\u27s formulation of the issue, if we wish to make our laws just, we must first see that many of our laws are unjust, and if we are to understand that simple truth, we must understand that the legality of those norms implies nothing about their justice. Surely the lessons of positivism are more compelling, not less compelling, in the constitutional context where the capacity for self-delusion is so great, given the moralistic content and peculiar history of the Constitution, and where the stakes are highest: the consequences of merging constitutional fact with constitutional virtue are that we preclude even the logical possibility of fundamental criticism of our most foundational legal document. As I have argued at some length elsewhere, by merging in our own minds and in the public mind constitutional morality and critical morality, we have closed the door to meaningful criticism of the Constitution. The positivist\u27s classic and even enlightened insistence on the separation of law and morality, if it would free up criticism of constitutional norms, could bring a welcome breath of fresh air. Today, legal positivism is widely taken to imply not just a conservative stance against legal change, but much worse: a refusal even to engage the issue, a denial of the coherence of legal criticism, and a denial of the relevance, in some sense, of legal reform. Given the historical grounding of positivism in an insistence on the need for legal criticism and legal reform, this modern belief about the reactionary consequences of legal positivism is strikingly peculiar: how did black become white? Where did this belief, so widely shared yet so wildly at odds with both the clear history and the apparent logic of legal positivism, come from? In these comments I want to supplement Fred Schauer\u27s discussion and general defense of positivism with a brief response, in a sense, to Cover\u27s quite chilling indictment. I will ultimately argue that whatever the (limited) force of Cover\u27s indictment of the positivism of the abolitionist judges, that argument has no force against the positivism of the nonjudge constitutional critic. The critic, unlike the judge, is interested in competing theories of the relationship between law and morality, not as a guide to legal interpretation, but rather as a guide to clear-headed legal criticism. The constitutional critic, almost by definition, will rarely if ever be a judge. For such a critic, contrary to contemporary opinion and for the reasons stressed by the classical positivists, positivism does indeed facilitate the kind of constitutional criticism that natural law thinking obscures

International Legal Positivism and Legal Realism

This chapter, a contribution to a book on International Legal Positivism in a Post-Modern World, gauges the potential for mutually enriching interactions between international legal positivism and legal realism. It first describes the encounter between legal positivism and legal realism in the U.S. legal academy and then proceeds to discuss the rise of a new legal realism in international legal theory. In a concluding section, the chapter assesses the compatibilities and tensions between the new international legal realism and the new international legal positivism.With its forthright embrace of the inescapability of uncertainty in law, the new international legal positivism adopts a sceptical position very similar to legal realism. However, this chapter contends, the new international legal positivism still requires a realist supplement in order to provide a fuller understanding of the way in which legal norms interact with non-legal factors and to help us describe, predict and analyse the behaviour of actors in international affairs. At the same time, new international legal realists can learn from the sceptical attitude towards sources of law that new international legal positivists have developed. The two movements can be symbiotic if brought into closer dialogue. Nonetheless, this chapter concludes with a dose of pessimism about the capacity of any of the currently available theories of international law to fully assimilate the complexities of both postmodern theory and postmodern global society into a comprehensive theory of international law in the postmodern world

Fighting a Resurgent Hyper-Positivism in Education is Music to My Ears

In this article, I argue that one of the gifts of the Age of Enlightenment, the ability to measure, to experiment, to predict—turned rancid by hyper-positivism—is re-asserting itself globally in the field of education (including music education). I see a neoliberal, neocolonial connection—in terms of the ideologies that fuel them—between some of the homogenizing, epistemologically/culturally imperialist aspects of globalization and this resurgent hyper-positivism that has been accompanied by a corporatization of education. I posit that critical education, including critical music education, is an essential component of a necessary—if rancorous—dialogue in maintaining a definition of education that is as varied and diverse as those students we wish to educate. In essence, I argue that critical education is one of many tools to help us fight a ‘re-colonization’ by this resurgent hyper-positivism in education

Moving Beyond the Enduring Dominance of Positivism in Psychological Research: An Australian Perspective

Almost since its inception, the dominant narrative of modern psychology has embraced positivism through its insistence that psychological science is objective, generalisable, and value free (or neutral). Consequently, quantitative research and in particular, experimental designs, are privileged over other forms of enquiry and other epistemologies, methodologies, and methods remain marginalised within the discipline. Alternative epistemologies and methodologies remain predominantly at the margins within psychological research yet have resulted from the growing dissatisfaction with the dominance of positivism. We argue that the enduring hegemony of positivism needs to be opposed to enable psychology to genuinely understand the antecedents of, and provides meaningful sustainable solutions for, complex human issues without being constrained by a narrow focus on method. We discuss how psychology in Australia can move towards embracing methodological and epistemological pluralism and provide a number of suggestions for change across the interrelated areas of accreditation, curriculum, the Australian Psychological Society, and research

Economists\u27 Odd Stand on the Positive-Normative Distinction: A Behavioral Economics View

This chapter examines economists’ indefensible attachment to the positive-normative distinction, and suggests a behavioral economics explanation of their behavior on the subject. It reviews the origins of the distinction in Hume’s guillotine and logical positivism, and shows how they form the basis for Robbins’ understanding of value neutrality. It connects philosophers’ rejection of logical positivism to their rejection of the positive-normative distinction, explains and modifies Putnam’s view of fact-value entanglement, and identifies four main ethical value judgments that contemporary economists employ. The behavioral explanation of economists’ denial of these value judgments emphasizes loss aversion and economists’ social identity as economist

re Enumerated Constitutional Rights The Only Rights We Have? The Case of Associational Freedom

Much of contemporary constitutional thought assumes that the only rights individuals have are either those that they are given by the legislature or those that are explicitly specified in the Constitution of the United States (or in a state constitution). Such a view of rights is based on the jurisprudential philosophy known as legal positivism, a view that has dominated academic discussions about legal rights for at least fifty years and that has begun to wane only in the last fifteen years.\u27 In this Paper, I will try to explain how adherence to this legal positivism taints and distorts constitutional discussions in general and discussions of associational freedom in particular

Building Trust and Collaboration with Rural Minorities: Experiences with Minority Farmers in the Mississippi Delta

The paper focuses on the question “What research approach is effective in building trust with minority farmers?” The question is answered through a documentation of researchers’ experiences building trust and collaboration with minority farmers in the lower Mississippi Delta. The researchers applied two research paradigms -logical positivism and paradigm of praxis. The logical positivism research approach was met with mistrust and open animosity and had to be abandoned for one based on the paradigm of praxis. Through this approach, and cognizant of the historical-social-political context, the researchers included insiders from the focus population as collaborators and researchers and succeeded in gaining the farmers\u27 trust