KJuris: George Pavlakos 'The Possibility of Radical non-Positivism and Kantian Independence'

The Yeoh Tiong Lay Centre for Politics, Philosophy and Law is delighted to host Professor George Pavlakos for the third workshop in the 2023/24 KJuris programme.

 

Title

The Possibility of Radical non-Positivism and Kantian Independence

 

Abstract

The paper defends a radical non-positivism according to which juridical relations of external freedom, and the obligations those engender, can materialise outwith institutionalised legal practices.

 

The first part of the paper sketches a radical version of non-positivism within contemporary analytical legal philosophy whose main characteristic is that it regards law-practices as non-necessary grounds of legal facts, or facts about the content of the law. To defend the possibility of such radical non-positivism, which Professor Pavlakos labels relations-first non-positivism, he argues that the explanation of legal facts must begin with legal relations, understood as interactions among agents that are governed by pre-institutional standards of political morality.

 

In the second part Professor Pavlakos appeals to Kant’s Universal Principle of Right [UPR] to underpin radical non-positivism. There, he proposes a relational reading of UPR according to which the independence of persons, as the central demand of external or juridical freedom, cannot be understood outside the relations of interdependence in which they enter in social life. The key point, and potential novelty of the defended reading, is that such relations are understood as political or public despite being pre-institutional; at the same time, they serve as a condition for the separateness of persons as distinct bearers of autonomy. The proposed interpretation of Kantian Right is defended against objections, such as: ‘what distinguishes juridical relations from purely moral ones?’; ‘how can we understand the collective ‘we-subject’, in whose name juridical obligations operate, in a pre-institutional manner?’; ‘how can we have pre-institutional legal relations if coercion/enforcement is constitutive of (Kantian) legal relations?’

 

In conclusion, the proposed reading of Kantian Right complements and reinforces a radical version of non-positivism which places centre stage pre-institutional relations as foundational ingredients of the external freedom of persons (relations-first non-positivism).

 

Author Bio

George Pavlakos is Professor of Law and Philosophy at the School of Law, University of Glasgow. He was previously Research Professor of Globalisation and Legal Theory and director of the Centre for Law and Cosmopolitan Values at the University of Antwerp and has held appointments as visiting Professor at the University of Kiel, the University of Bologna, Beihang University, the European Academy of Legal Theory in Brussels, the Institute of State and Law of the Czech Academy of Sciences (USTAV), and the University of Sao Paolo (USP). Since 2019 he serves on the Executive Committee of the International Association of Legal Theory (IVR).

 

His research focuses on the metaphysics of law, relational accounts of normativity and the legal philosophy of Kant. His research has appeared in Pacific Philosophical Quarterly, Legal Theory, the Canadian Journal of Law and Jurisprudence, Ratio Juris and Rechtstheorie. George is currently working on a monograph under the working title A Relations-First Account of Law: the Metaphysics of Radical Non-Positivism.

 

George is an editor of the Cambridge ELEMENTS in Legal Philosophy; a general editor of the journal Jurisprudence (Taylor & Francis); and the lead editor of the book series Law and Practical Reason (Hart Publishing).