Overjuridification and Legal Positivism
The 32nd World Congress of the International Association Philosophy of Law and Social Philosophy, İstanbul, Türkiye, 28 Haziran - 03 Temmuz 2026, ss.187, (Özet Bildiri)
- Yayın Türü: Bildiri / Özet Bildiri
- Basıldığı Şehir: İstanbul
- Basıldığı Ülke: Türkiye
- Sayfa Sayıları: ss.187
- Ankara Yıldırım Beyazıt Üniversitesi Adresli: Evet
Özet
The primary objective of legal positivism is to determine what law is and to distinguish legal rules from other normative rules. In this study, legal positivism’s effort, which is based on distinguishing the legal from the non-legal, will be examined by focusing not on what constitutes law, but on what remains outside the realm of law. The concept of “over-juridification” serves as a tool we will use to focus on what is not law. In our study, we will first define the concept of over-juridification. The most comprehensive definition of “juridification”—the basic form of this concept—in the literature is provided in Blichner and Molander’s article titled “Mapping Juridification.” According to this definition, juridification is characterized by five dimensions: constitutive, expansion, conflict-solving, judicial power, and legal framing. Of these, conflict-solving and legal framing are the elements we will use to explain over-juridification. Additionally, we will address the points where over-juridification diverges from resembling concepts such as legal fetishism and the colonization of the life world—which are used in a similar sense in the literature—and justify our conceptual choice. This article examines legal positivism through the concept of overjuridification, focusing on the legal theories of Hart, Raz, and MacCormick. In Hart’s distinction between primary and secondary rules, secondary rules; in Raz’s authority thesis, exclusionary reasons for action; and in MacCormick’s theory of institutional normative order, institutionalization have been identified as the key features distinguishing law from non-law. For the purposes of this study, the existence (or absence) of primary rules, first-order reasons for action and a pre-institutional normative order will be taken as the main points of analysis. The central claim is that, due to overjuridification, the positivist attempts to distinguish between what counts as law and what does not has lost much of its significance.