Literatura in cenzura - Društvo za primerjalno književnost - ZRC SAZU

Rok Svetlič:Judicial Censorship as a Place for the Breakdownand are therefore not suitable for intellectual treatment. With regard tothese things, science (episteme) is impossible; only an opinion (doxa) ispossible.The positivist reductions described here all have the same aim. Theytry to delimit the concept of truth. Before the rise of positivism, moraldiscourse was able to appear scientific and was therefore included injurisprudence. At some moment that became impossible, and legal positivismis the response to that shift. It selects, in the same way as Platodid, the “bright” and clear parts of phenomena; that is, the left side ofthe pairs rule:principle, pedigree:content, and definition:interpretation. The exclusionof morality is therefore not a formalism or the result of scientists’carelessness. It is an act into which legal science was ontologicallyforced.As stated at the outset, our platform is the critical perspective on philosophyof the twentieth century. What critics asserted for philosophy as awhole also holds for judicial positivism. The attempt to enclose the law inthe “meaning” box had to fail. Positivism follows the appealing exampleof natural science. When we say that force is the product of mass and acceleration,we say the whole truth. Nothing remains for further discussion,for new research, or for the next symposium.This is a temptation that is difficult to resist. Legal positivism tries totransmit it into law with the help of reductions. In addition to the concisenessof natural science, the ideal also includes the neutrality of the subject.When the scientist reads the voltmeter, his opinion about the issue, hisworldview, whether he is liberal or conservative, and so on simply do notmatter. Positivism tries to perform this neutralization of the subject withinthe law. It believes that the reductions can leave all the controversial topicsoutside. It believes that it is possible at one point to say “this and only thisis the law”. Dworkin expresses this using a distinction between theoreticaland empirical disagreement in which, by the exclusion of controversialtopics, it can be assured that theoretical disagreement is not possiblewithin jurisprudence any longer:Legal philosophers are of course aware that theoretical disagreement is problematic,but it is not immediately clear what kind of disagreement it is. But most ofthem have settled on what we shall soon see is an evasion rather than an answer.They say that theoretical disagreement is an illusion, that lawyers all actually agreeabout the grounds of law. I shall call this the “plain fact” view of the grounds oflaw. (Law's Empire 7)The “plain fact” view of law would put the judge in the same positionas the scientist, reading the voltmeter. He just pronounces what he sees. 2195