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.

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.

Context-resonant systems perspectives in career theory

"The focus of this chapter is on context-resonant systems perspectives in career theory and their implications for practice in diverse cultural and contextual settings. For over two decades, the potential of systems theory to offer a context-resonant approach to career development has been acknowledged. Career development theory and practice, however, have been dominated for most of their history by more narrowly defined theories informed by a trait-and-factor tradition of matching the characteristics of individuals to occupations. In contrast, systems theory challenges this parts-in-isolation approach and offers a response that can accommodate the complexity of both the lives of individuals and the world of the 21st century by taking a more holistic approach that considers individuals in context. These differences in theory and practice may be attributed to the underlying philosophies that inform them. For example, the philosophy informing the trait-and-factor theoretical position, logical positivism, places value on: studying individuals in isolation from their environments; content over process; facts over feelings; objectivity over subjectivity; and views individual behavior as observable, measurable, and linear. In practice, this theory base manifests in expert-driven practices founded on the assessment of personal traits such as interests, personality, values, or beliefs which may be matched to particular occupations. The philosophy informing more recent theoretical positions, constructivism, places value on: studying individuals in their contexts; making meaning of experience through the use of subjective narrative accounts; and a belief in the capacity of individuals known as agency. In practice, this theory base manifests in practices founded on collaborative relationships with clients, narrative approaches, and a reduced emphasis on expert-driven linear processes. Thus, the tenets of constructivism which inform the systems perspectives in career theory are context-resonant. Systems theory stresses holism where the interconnectedness of all elements of a system is considered. Systems may be open or closed. Closed systems have no relationship with their external environment whereas open systems interact with their external environment and are open to external influence which is necessary for regeneration. Congruent with general systems theory, the systems perspectives emerging within career theory are based on open systems. Such systems are complex and dynamic and comprise many elements and subsystems which recursively interact with each other as well as with influences from the surrounding environment. As elements of a system should not be considered in isolation, a systems approach is holistic. Patterns of behavior are found in the relationships between the elements of dynamic systems. Because of the multiplicity of relationships within and between elements of subsystems, the possibility of linear causal explanations is reduced. Story is the mechanism through which the relationships and patterns within systems are recounted by individuals. Thus the career guidance practices emanating from theories informed by systems perspectives are inherently narrative in orientation. Narrative career counseling encourages career development to be understood from the subjective perspective of clients. The application of systemic thinking in practice takes greater account of context. In so doing, practices informed by systems theory may facilitate relevance to a diverse client group in diverse settings. In a world that has become increasingly global and diverse it seems that context-resonant systems perspectives in career theory are essential to ensure the future of career development. Translating context-resonant systems perspectives into practice offers important possibilities for methods and approaches that are respectful of diversity."--publisher website

Rendering to Caesar and God : St Paul, the natural law tradition and the authority of law

The question of the authority of law has occupied and vexed the literature and philosophy of law for centuries. Law is something that characteristically implies obedience, but the precise nature of law’s authority remains contentious. The return to the writings of the Apostle Paul in contemporary philosophy, theology and jurisprudence begs attention in relation to the authority of law, and so this article will consider his analysis and critique of law with a focus on his Epistle to the Romans. It argues that Paul’s conception of the authority of law is explained on the basis that the law is from God, it externally sanctions obedience by virtue of the civil authorities, and it convicts internally in conscience. This triad is justified by the law of love (‘‘love your neighbor as yourself’’), and will be explained in relation to the natural law tradition as well as converse ideas in positivism. Hence, considering the reasoning of Paul in relation to traditional jurisprudential themes and the law of love provides a useful alternative analysis and basis for further investigation regarding the authority of law and the need for its obedience.

The ongoing significance of national media systems in the context of media globalization

This article argues that the concept of national media systems, and the comparative study of media systems, institutions, and practices, retains relevance in an era of media globalization and technological convergence. It considers various critiques of ‘media systems’ theories, such as those which view the concept of ‘system’ as a legacy of an outdated positivism and those which argue that the media globalization is weakening the relevance of nation-states in structuring the field of media cultures and practices. It argues for the continuing centrality of nation-states to media processes, and the ongoing significance of the national space in an age of media globalization, with reference to case studies of Internet policies in China, Brazil, and Australia. These studies indicate that nation-states remain critical actors in media governance and that domestic actors largely shape the central dynamics of media policies, even where media technologies and platforms enable global flows of media content.

La modernización entre cafetales : San José, Costa Rica, 1880-1930

This work examines the urban modernization of San José, Costa Rica, between 1880 and 1930, using a cultural approach to trace the emergence of the bourgeois city in a small Central American capital, within the context of order and progress. As proposed by Henri Lefebvre, Manuel Castells and Edward Soja, space is given its rightful place as protagonist. The city, subject of this study, is explored as a seat of social power and as the embodiment of a cultural transformation that took shape in that space, a transformation spearheaded by the dominant social group, the Liberal elite. An analysis of the product built environment allows us to understand why the city grew in a determined manner: how the urban space became organized and how its infrastructure and services distributed. Although the emphasis is on the Liberal heyday from 1880-1930, this study also examines the history of the city since its origins in the late colonial period through its consolidation as a capital during the independent era, in order to characterize the nineteenth century colonial city that prevailed up to 1890 s. A diverse array of primary sources including official acts, memoirs, newspaper sources, maps and plans, photographs, and travelogues are used to study the initial phase of San Jose s urban growth. The investigation places the first period of modern urban growth at the turn of the nineteenth century within the prevailing ideological and political context of Positivism and Liberalism. The ideas of the city s elite regarding progress were translated into and reflected in the physical transformation of the city and in the social construction of space. Not only the transformations but also the limits and contradictions of the process of urban change are examined. At the same time, the reorganization of the city s physical space and the beginnings of the ensanche are studied. Hygiene as an engine of urban renovation is explored by studying the period s new public infrastructure (including pipelines, sewer systems, and the use of asphalt pavement) as part of the Saneamiento of San José. The modernization of public space is analyzed through a study of the first parks, boulevards and monuments and the emergence of a new urban culture prominently displayed in these green spaces. Parks and boulevards were new public and secular places of power within the modern city, used by the elite to display and educate the urban population into the new civic and secular traditions. The study goes on to explore the idealized image of the modern city through an analysis of European and North American travelogues and photography. The new esthetic of theatrical-spectacular representation of the modern city constructed a visual guide of how to understand and come to know the city. A partial and selective image of generalized urban change presented only the bourgeois facade and excluded everything that challenged the idea of progress. The enduring patterns of spatial and symbolic exclusion built into Costa Rica s capital city at the dawn of the twentieth century shed important light on the long-term political social and cultural processes that have created the troubled urban landscapes of contemporary Latin America.