Legal Positivism and the Moral Origins of Legal Systems

Notre Dame Law Review, 2000

Ratio Juris

Much controversy has emerged on the demarcation between legal positivism and non-legal positivism with some authors calling for a ban on the-as they see it-nonsensical labelling of legal philosophical debates. We agree with these critics; simplistic labelling cannot replace the work of sophisticated and sound argumentation. In this paper we do not use the term 'legal positivism' as a simplistic label but identify a specific position which we consider to be the most appealing and plausible view on legal positivism. This is the view advocated by Gardner in his paper 'Legal Positivism: 5 1 =2 Myths' (Gardner 2001, 199), where he carefully scrutinises the most convincing and unifying postulates of legal positivism, which he calls "the thin view". The study shows that this thin view presupposes an empirical conception of action that is untenable and implausible since it makes acts of engagement with the law unintelligible to an observer of such acts.

Oxford University Press eBooks, 2007

It has become increasingly popular to argue that legal positivism is actually a normative theory, and that it cannot be purely descriptive and morally neutral as H.L.A. Hart has suggested. This article purports to disprove this line of thought. It argues that legal positivism is best understood as a descriptive, morally neutral, theory about the nature of law. The article distinguishes between five possible views about the relations between normative claims and legal positivism, arguing that some of them are not at odds with Hart's thesis about the nature of jurisprudence, while the others are wrong, both as expositions of legal positivism or as critiques of it. Legal positivism does not necessarily purport to justify any aspect of its subject matter, nor is it committed to any particular moral or political evaluations.

2021

In this thesis, I discuss and evaluate five theories of jurisprudence explaining how each one answers two central questions. The first, the Grounding Question, asks what it is that makes something a law. The second question, the Normative Question, asks why it is that laws ought to be followed. I use these questions to establish four desiderata for a theory of jurisprudence: a satisfactory theory must answer the Grounding Question and explain its answer, and it must do the same for the Normative Question. The five theories fall into two historically opposed categorizations: legal positivism and natural law theory. In section 2, I explain three positivist and two natural law theories, highlighting how each answers the central questions. In section 3, I discuss two more desiderata that help to explain some of the motivations for holding each view. Finally, in section 4, I compare each theory’s answer to the central questions. I find that while each theory has a satisfactory answer to ...

SSRN Electronic Journal

2011

Probably the most interesting debate in legal theory of the 20th century, the debate about legal positivism, is appearing to fade away. The contributions to this special issue aim to analyze the question as to why this is happening. We asked the authors to consider the following hypotheses, which are partly contradicting:

This paper extends previous work of mine, joining together three topics: (1) Kant's legal theory, with its emphasis on Right mutual independence; (2) how to make normative sense of the law of private wrongs; and (3) the question of whether some form of legal positivism--the view that legal norms are valid, if they are, in virtue of their sources, not in virtue their moral merits--is true. I argue that a background picture of what morality might be is part of what makes legal positivism seem interesting and compelling, and that the debate about legal positivism cannot be agnostic about what morality might be.

This paper compares the pragmatist view of law as boundaryless and endogenous with the competing view--generally known as “legal positivism”--which sees law as separate, exogenous and autonomous. Both models are reflected in the methodology of American law; yet the two are at odds. They imply a deep inconsistency in our corporate belief in what law is, giving rise to radically different approaches to legal interpretation. According to the positivist model, law, considered as an adjudicative matrix, either succeeds or fails on its own. When deciding difficult cases this means the positivist must accept the problematic possibility of “legal indeterminacy.” This revision includes a postscript on the pragmatist theory of legal interpretation.

Oxford Journal of Legal Studies , 2023

This article examines the jurisprudential arguments elaborated in David Dyzenhaus's The Long Arc of Legality. In particular, it looks into the main claim of the book: that the fact of 'very unjust laws' is central to illuminating the idea of law's authority, the elaboration of which Dyzenhaus takes to be the purpose of legal theory. The article analyses Dyzenhaus's own normative proposal in this matter, which consists of a version of legal positivism committed to Lon Fuller's principles of the internal morality of law, with the corollary of a conception of the judicial role as bound to a duty to apply these internal principles of legality when exercising their main function. While I cast some doubts on the feasibility of constructing the judge's function that way, in the end I celebrate Dyzenhaus's attempt at refining legal positivism's identity, especially in light of the ongoing debate with contemporary anti-positivism.