Challenging the assumptions of positivism : an analysis of the concept of society in Sampi on behalf of the Bardi and Jawi people v Western Australia [2010] and Bodney v Bennell [2008]

The requirement to prove a society united by a body of law and customs to establish native title rights has been identified as a major hurdle to achieving native title recognition. The recent appeal decision of the Federal Court in Sampi on behalf of the Bardi and Jawi People v Western Australia [2010] opens the potential for a new judicial interpretation of society based on the internal view of native title claimants. The decision draws on defining features of legal positivism to inform the court’s findings as to the existence of a single Bardi Jawi society of ‘one people’ living under ‘one law’. The case of Bodney v Bennell [2008] is analysed through comparitive study of how the application of the received positivist framework may limit native title recognition. This paper argues that the framing of Indigenous law by reference to Western legal norms is problematic due to the assumptions of legal positivism and that an internal view based on Indigenous worldviews, which see law as intrinsically linked to the spiritual and ancestral connection to country, is more appropriate to determine proof in native title claims.

Grounded theory : a methodological spiral from positivism to postmodernism

Aim. Our aim in this paper is to explain a methodological/methods package devised to incorporate situational and social world mapping with frame analysis, based on a grounded theory study of Australian rural nurses' experiences of mentoring. Background. Situational analysis, as conceived by Adele Clarke, shifts the research methodology of grounded theory from being located within a postpositivist paradigm to a postmodern paradigm. Clarke uses three types of maps during this process: situational, social world and positional, in combination with discourse analysis. Method. During our grounded theory study, the process of concurrent interview data generation and analysis incorporated situational and social world mapping techniques. An outcome of this was our increased awareness of how outside actors influenced participants in their constructions of mentoring. In our attempts to use Clarke's methodological package, however, it became apparent that our constructivist beliefs about human agency could not be reconciled with the postmodern project of discourse analysis. We then turned to the literature on symbolic interactionism and adopted frame analysis as a method to examine the literature on rural nursing and mentoring as secondary form of data. Findings. While we found situational and social world mapping very useful, we were less successful in using positional maps. In retrospect, we would argue that collective action framing provides an alternative to analysing such positions in the literature. This is particularly so for researchers who locate themselves within a constructivist paradigm, and who are therefore unwilling to reject the notion of human agency and the ability of individuals to shape their world in some way. Conclusion. Our example of using this package of situational and social worlds mapping with frame analysis is intended to assist other researchers to locate participants more transparently in the social worlds that they negotiate in their everyday practice. © 2007 Blackwell Publishing Ltd.

Positivism: one ring to rule them all? A tale of information systems research methodology

The tale of research methodology in information systems is told through the fantasy of Tolkien’s Lord of the Rings. The tale is intended to be at once a piece of light hearted fun in its placement of the struggles of research methodology as an epic story but, in the tradition of the court jester, attempts to provide a new perspective on Information Systems (IS) research methodology and our struggles with positivism in particular. Our tale is one of developing a greater maturity and confidence in IS methodology and introduces postmodern methodologies to Information Systems. Our tale, our pastiche, is itself postmodern.

Abstract ethics, embodied ethics : the strange marriage of Foucault and Positivism in labour process theory

In this paper, I draw jointly upon a Foucauldian ethical discourse and the example of the so-called `Manchester school' of Foucauldian labour process theory (LPT) to question the political/ethical aspirations and effects of critical management studies. Specifically, I question the ethics and effects of LPT researchers' relationships with those they/we research. I organize the discussion around four Foucauldian ethical themes or feelings. I thread these ethical themes throughout the paper to argue that, though Foucauldian LPT may be understood to abstractly resonate with these themes, its contribution is seriously undermined through the authors' lack of attention to ways of embodying this ethics in relations with the researched. By not embodying these commitments, the marriage between Foucault and LPT risks being read more as a marriage of convenience than commitment. And, further, a marriage that reproduces a politically problematic `modernist/positivist' self-other separation or divorce between researcher and researched.

Important, unimportant a critical anticipation of the assumptions of legal positivism in Alice in Wonderland

Almost a full century separates Lewis’ Alice in Wonderland (1865) and the second, lengthier and more elaborate edition of Hans Kelsen’s Pure Theory of Law (1960; first edition published in 1934). And yet, it is possible to argue that the former anticipates and critically addresses many of the philosophical assumptions that underlie and are elemental to the argument of the latter. Both texts, with the illuminating differences that arise from their disparate genre, have as one of their key themes norms and their functioning. Wonderland, as Alice soon finds out, is a world beset by rules of all kinds: from the etiquette rituals of the mad tea-party to the changing setting for the cricket game to the procedural insanity of the trial with which the novel ends. Pure Theory of Law, as Kelsen emphatically stresses, has the grundnorm as the cornerstone upon which the whole theoretical edifice rests2. This paper discusses some of the assumptions underlying Kelsen’s argument as an instance of the modern worldview which Lewis satirically scrutinizes. The first section (Sleepy and stupid) discusses Lewis critique of the idea that, to correctly apprehend an object (in the case of Kelsen’s study, law), one has to free it from its alien elements. The second section (Do bats eat cats?) discusses the notion of systemic coherence and its impact on modern ways of thinking about truth, law and society. The third section (Off with their heads!) explores the connections between readings of systems as neutral entities and the perpetuation of political power. The fourth and final section (Important, Unimportant) explains the sense in which a “critical anticipation” is both possible and useful to discuss the philosophical assumptions structuring some positivist arguments. It also discusses the reasons for choosing to focus on Kelsen’s work, rather than on that of Lewis’ contemporary, John Austin, whose The Province of Jurisprudence Determined (published in 1832) remains influential in legal debates today.

Meta-theories in research: positivism, postmodernism, and critical realism

No scholar or researcher is able to provide robust evidence that counters the scant reflection on metatheory – mostly ontology and epistemology – underlying management studies in general, and industrial marketing and purchasing research in particular. This paper is a contribution to the indispensable discussion of metatheoretical alternatives in research, and most importantly, the strengths and shortcomings thereof, and respective implications on research questions, objectives, and findings.

CONSTITUTIONAL JUSTICE IN AFRICA: An Examination of Constitutional Positivism, Fundamental Law and Rights in Ghana and Nigeria

This work explores the idea of constitutional justice in Africa with a focus on constitutional interpretation in Ghana and Nigeria. The objective is to develop a theory of constitutional interpretation based upon a conception of law that allows the existing constitutions of Ghana and Nigeria to be construed by the courts as law in a manner that best serves the collective wellbeing of the people. The project involves an examination of both legal theory and substantive constitutional law. The theoretical argument will be applied to show how a proper understanding of the ideals of the rule of law and constitutionalism in Ghana and Nigeria necessitate the conclusion that socio-economic rights in those countries are constitutionally protected and judicially enforceable. The thesis argues that this conclusion follows from a general claim that constitutions should represent a ‘fundamental law’ and must be construed as an aspirational moral ideal for the common good of the people. The argument is essentially about the inherent character of ‘legality’ or the ‘rule of law.’ It weaves together ideas developed by Lon Fuller, Ronald Dworkin, T.R.S. Allan and David Dyzenhaus, as well as the strand of common law constitutionalism associated with Sir Edward Coke, to develop a moral sense of ‘law’ that transcends the confines of positive or explicit law while remaining inherently ‘legal’ as opposed to purely moral or political. What emerges is an unwritten fundamental law of reason located between pure morality or natural law on the one hand and strict, explicit, or positive law on the other. It is argued that this fundamental law is, or should be, the basis of constitutional interpretation, especially in transitional democracies like Ghana and Nigeria, and that it grounds constitutional protection for socio-economic rights. Equipped with this theory of law, courts in developing African countries like Ghana and Nigeria will be in a better position to contribute towards developing a real sense of constitutional justice for Africa.

Auguste Comte and positivism : an address delivered at the Church of Humanity, Chapel Street, Holborn /

Mode of access: Internet.

CONSTITUTIONAL JUSTICE IN AFRICA: An Examination of Constitutional Positivism, Fundamental Law and Rights in Ghana and Nigeria

This work explores the idea of constitutional justice in Africa with a focus on constitutional interpretation in Ghana and Nigeria. The objective is to develop a theory of constitutional interpretation based upon a conception of law that allows the existing constitutions of Ghana and Nigeria to be construed by the courts as law in a manner that best serves the collective wellbeing of the people. The project involves an examination of both legal theory and substantive constitutional law. The theoretical argument will be applied to show how a proper understanding of the ideals of the rule of law and constitutionalism in Ghana and Nigeria necessitate the conclusion that socio-economic rights in those countries are constitutionally protected and judicially enforceable. The thesis argues that this conclusion follows from a general claim that constitutions should represent a ‘fundamental law’ and must be construed as an aspirational moral ideal for the common good of the people. The argument is essentially about the inherent character of ‘legality’ or the ‘rule of law.’ It weaves together ideas developed by Lon Fuller, Ronald Dworkin, T.R.S. Allan and David Dyzenhaus, as well as the strand of common law constitutionalism associated with Sir Edward Coke, to develop a moral sense of ‘law’ that transcends the confines of positive or explicit law while remaining inherently ‘legal’ as opposed to purely moral or political. What emerges is an unwritten fundamental law of reason located between pure morality or natural law on the one hand and strict, explicit, or positive law on the other. It is argued that this fundamental law is, or should be, the basis of constitutional interpretation, especially in transitional democracies like Ghana and Nigeria, and that it grounds constitutional protection for socio-economic rights. Equipped with this theory of law, courts in developing African countries like Ghana and Nigeria will be in a better position to contribute towards developing a real sense of constitutional justice for Africa.