This book develops a general theory of law, inclusive legal positivism, which seeks to remain within the tradition represented by authors such as Austin, Hart, MacCormick, and Raz, while sharing some of the virtues of both classical and modern theories of natural law, as represented by authors such as Aquinas, Fuller, Finnis, and Dworkin. Its central theoretical questions are: Does the existence or content of positive law ever depend on moral considerations? If so, is this fact consistent with (...) legal positivism? The author shows how inclusive positivism allows one to answer yes to both of these questions. In addition to articulating and defending his own version of legal positivism, which is a refinement and development of the views of H.L.A. Hart as expressed in his classic book The Concept of Law, the author clarifies the terms of current jurisprudential debates about the nature of law. These debates are often clouded by failures to appreciate that different theorists are offering differing kinds of theories and attempting to answer different questions. There is also a failure, principally on the part of Ronald Dworkin, to characterize opposing theories correctly. The clarity of Waluchow's work will help to remove the confusion which has hitherto marred some jurisprudential debate, particularly about Dworkin's work. (shrink)

Wil Waluchow has advanced perhaps the most convincing argument in favour of what he eloquently termed ‘inclusive legal positivism’, the view that a given legal system could make legal validity depend on moral truths. This chapter refocuses the case for the opposing view of exclusive positivism on the metaphysical tension in seeing law as an institutional social fact and yet for its validity to depend on something that is not a social fact, developing an understanding (...) of official mistake as a way of highlighting that tension. If legal validity itself is understood as a socially constructed status (something with which any legal positivist would agree), key officials (as a group) cannot be wrong about the criteria sufficient for institutional membership having been met. While the officials cannot be wrong about the sufficient conditions, they can be wrong about the necessary (gatekeeping) ones and the moral criteria that inclusive positivists say could be included among the criteria of validity are invariably understood to be necessary conditions. That might look like a point in favour of inclusive positivism, but it is only the sufficient conditions that are constitutive of legal validity. Two facets of legal decisions are then marshalled to buttress the case for exclusive positivism: that almost every legal decision is also a determination of validity, and that all such decisions are systemically treated as correct until reviewed by a court of superior jurisdiction (which is itself a sufficient condition for membership). The implication of this is that moral criteria, understood as gatekeepers for legal validity, cannot be constitutive of legal validity. (shrink)

Like many recent works in legal theory, especially those focusing on the apparently conflicting schools of legal positivism and natural law, Waluchow’s Inclusive Legal Positivism begins by admitting a degree of perplexity about the field; indeed, he suggests that the field has fallen into “chaos”. Disturbingly, those working within legal theory appear most uncertain about what the tasks of their field are. Legal philosophers often seem to suspect strongly that at least their colleagues (...) in the field are confused about those tasks. As a result, many recent books in legal theory are in large part exercises in legal metatheory, devoting many pages to attempts to define the purposes and goals of the field. Waluchow follows this trend and begins by expressing a desire to clarify the issues that separate those trying to give an account of the nature of law. His ultimate goal is to defend a version of legal positivism, inclusive legal positivism, that he thinks is at least implicit in H. L. A. Hart’s work. (shrink)

The first comprehensive study of international legal positivism and how this theory operates in twenty-first-century international legal scholarship.

The aim of this collection of essays on legal positivism is to complete the already easily available English material on this subject. This is not a collection of writings by legal positivists, but about legal positivism.

The goal of this paper is to provide an accurate grounding-based formulation of positivism in the philosophy of law. I start off by discussing some simple formulations, based on the ideas that social facts are always either full or partial grounds of legal facts. I then raise a number of objections against these definitions: the full grounding proposal rules out possibilities that are compatible with positivism; the partial grounding proposal fails, on its own, to vindicate the distinctive (...) role that is played by social facts within positivist accounts of law. Then, I present a more adequate and insightful formulation capable of solving their problems, which crucially relies on a robust notion of a social enabler. Finally, I model inclusive and exclusive positivism on the resulting template, and set out the advantages of the ground-enablers proposal. (shrink)

This chapter contains section titled: History and Context Clarifications Alternative Legal Positivisms The Rule of Recognition and the Basic Norm The Divisions Within Contemporary Legal Positivism Debates and Distinctive Views Critiques of Legal Positivism Two Critics: Ronald Dworkin and John Finnis Methodological Questions and the Way Forward Conclusion Note References Further Reading.

ABSTRACTThe aim of this article is to see whether we can account for the normativity of law within the framework of legal positivism and whether the idea of a social convention could be of help in this endeavour. I argue, inter alia, that we should distinguish between the problem of accounting for the normativity of law, conceived as a necessary property of law, and the problem of accounting for the use of normative legal language on the part (...) of legal actors; that the debate about the normativity of law, which mainly concerns, is more or less identical to the debate between legal positivists and non-positivists; that one cannot account for the normativity of law, conceived along the lines of, within the framework of legal positivism, and that the question of the normativity of law considered within the framework of legal positivism is not an open question. (shrink)

In this paper I put forward some arguments in defence of inclusive legal positivism . The general thesis that I defend is that inclusive positivism represents a more fruitful and interesting research program than that proposed by exclusive positivism . I introduce two arguments connected with legal interpretation in favour of my thesis. However, my opinion is that inclusive positivism does not sufficiently succeed in estranging itself from the more traditional legal positivist conceptions. (...) This is the case, for instance, with regard to the value-freedom principle, which is commonly accepted by inclusive positivist scholars. In contrast with this approach, I try to show, in the concluding section, how a constructivistic version of inclusive positivism could legitimately acknowledge the presence of value-judgments in the cognitive activities of jurists and legal theorists. (shrink)

This paper identifies a volitional theory of meaning common to speech act theory and legal positivism, represented by Hart and Kelsen. This model is compared and contrasted with the model of social operations developed by Reid, a Common Sense Enlightenment philosopher. Whereas the former subscribes to the view that meaning is generated by acts of will, the latter finds meaning to consist of the dual elements of sign and 'directedness'.The ability of positivist theories to provide a structural account (...) of the difference between legal rules and other rules is inextricably linked to this commitment to the volitional theory of meaning. The commitment to the volitional view however leads to problems in requiring that some kind of authority be presupposed in for plain rules to attain legal force. Such authority can only be established with recourse to further rules or must be accepted as a matter of faith. Reid's criterion of direction however vitiates the need for an authority, instead accounting for social communication in general, and rules in particular, in terms of sociological factors. Although no comprehensive critique of the volitional theory is proposed, Reid's model is preferable on the grounds of explanatory richness.The core claims of the paper are that: legal positivism necessarily subscribes to the volitional theory of meaning; rejection of the volitional theory necessarily entails rejection of the positivist view that legal and non-legal rules can be differentiated on structural grounds another counter-model exists which avoids some of the pitfalls of the volitional theory; if the volitional theory is rejected then the existence of rules can only be accounted for in a 'strong' sociological sense and legal theory must accordingly accept the dominant role of sociology in conceptualising the nature of rules. (shrink)

Tom Campbell is well known for his distinctive contributions to legal and political philosophy over three decades. In emphasising the moral and political importance of taking a positivist approach to law and rights, he has challenged current academic orthodoxies and made a powerful case for regaining and retaining democratic control over the content and development of human rights. This collection of his essays reaches back to his pioneering work on socialist rights in the 1980s and forward from his seminal (...) book, The Legal Theory of Ethical Positivism (1996). An introductory essay provides an historical overview of Professor Campbell's work and argues for the continuing importance of 'democratic positivism' at a time when it is again becoming clear that courts are ineffective protectors of human rights. (shrink)

This book represents a serious and philosophically sophisticated guide to modern American legal theory, demonstrating that legal positivism has been a misunderstood and underappreciated perspective through most of twentieth-century American legal thought. Anthony Sebok traces the roots of positivism through the first half of the twentieth century, and rejects the view that one must adopt some version of natural law theory in order to recognize moral principles in the law. On the contrary, once one corrects (...) for the mistakes of formalism and postwar legal process, one is left with a theory of legal positivism that takes moral principles seriously while avoiding the pitfalls of natural law. The broad scope of this book ensures that it will be read by philosophers of law, historians of law, historians of American intellectual life, and those in political science concerned with public law and administration. (shrink)

We explore an underappreciated tension at the heart of the debate over legal positivism. On the one hand, many legal philosophers aspire for the debate to tell us what law is, and the nature of law. But on the other hand, the positions in the debate are generally formulated such that they’re about something else: what law is necessarily connected to or dependent on. This is a genuine tension, because theses about what law is necessarily connected to (...) or dependent on do not by themselves state or automatically settle what law is or the nature of law. This tension prompts us to propose a new approach to formulating positivism and antipositivism as theses about the real definition of law. Our proposal is simple, but fruitful. We argue that it better insulates and unifies the debate: that is, it prevents orthogonal theses from trivially vindicating or falsifying positivism and antipositivism, and it explains how different threads of the existing debate contribute to a single topic. We close by briefly considering two recent arguments about exclusive positivism, to illustrate how our discussion bears on contemporary jurisprudential debates. (shrink)

Legal positivism and natural law theory have traditionally been construed as mutually exclusive theories about the relationship between morality and the law. Although I endorse a good deal of this traditional wisdom, I shall argue that we can and should construe LP and NL as complementary theories. So construed, they not only are compatible but also state important truths.

It is natural to think of legal positivism and jurisprudential naturalism as intellectually allied ideas. Legal positivism is associated with the idea that law is a matter of social fact; naturalism is a philosophical tenet that, among other things suggests the importance of scientific findings and methods to philosophy. At the very least, there seems to be a close family resemblance between the two views. In this essay, I challenge this view from a naturalistic perspective. I (...) show that the best-known proponents of legal positivism in the twentieth century all rejected naturalism. I dedicate most of my discussion to H.L.A. Hart’s version of legal positivism, as it appears superficially friendly to naturalism. I show that throughout his career and in writings on a wide range of topics, Hart consistently argued against the applicability of the methods of science to the explanation of social phenomena. This is not a small matter: I argue that it is this anti-naturalistic stance that contributed to his descriptively faulty account of adjudication. After reviewing more briefly the work of other leading legal positivists, I argue in my conclusion that those seeking to advance a naturalistic approach to law should turn their backs of much of twentieth-century legal positivism, which in various guises has been hostile to naturalism. (shrink)

This chapter contains sections titled: Jurisprudence: Method and Subject Matter Legality and Authority Positivism: Austin vs. Hart The Authority of Law Judicial Discretion Incorporationism and Legality Raz' s Theory of Authority Incorporationism and Authority Conclusion Postscript References.

An increasing number of Italian scholars are beginning to share the idea that the conceptual basis of legal positivism (LP) is wrong, particularly in the field of Public Law. According to a group of theories called “neoconstitutionalism,” constitutionalism is to be understood not only as a principle based on the need to impose legal limits to political power, but also as an aggregation of values capable of continually remodelling legal relationships, positioning itself as a “pervasive” point (...) of reference for legal experience. A recent essay by Professor Antonio Baldassarre, President Emeritus of the Constitutional Italian Court, about the “misery of legal positivism” is a good expression of this view. In this article, the ideas outlined by Baldassarre are examined and criticized. The paper also tries to defend a version of legal positivism, which has both a conceptual and prescriptive meaning, relating to decisions made on the basis of rules. This view is based on the two correlated concepts of primary formalism and secondary formalism of “competence and procedure.”. (shrink)

Legal positivists maintain that the legality of a rule is fundamentally determined by social facts. Yet for much of legal history, ordinary officials used legal terminology in ways that seem inconsistent with positivism. Judges regularly cited, analyzed, and predicated their decisions on the ‘laws of justice’ which they claimed had universal legal import. This practice, though well-documented by historians, has received surprisingly little philosophical attention; I argue that it invites explanation from positivists. After taxonomizing the (...) positivist’s explanatory options, I suggest that the most viable option appeals to conceptual change: classical Romans, early modern Europeans, founding-era Americans were not using ‘law’ (or ‘lex’ or ‘jus’) to refer to the subject matter of contemporary legal philosophy. But the strategy is costly. It renders positivism’s truth surprisingly parochial. And it supplies new reasons for doubting positivist accounts of contemporary practices, including the treatment of moral principles in modern adjudication. (shrink)

According to Scott Shapiro’s Moral Aim Thesis, it is an essential feature of the law that it has a moral aim. In short, for Shapiro, this means that the law has the constitutive aim of providing morally good solutions to morally significant social problems in cases where other, less formal ways of guiding the activity of agents won’t work. In this article, I argue that legal positivists should reject the Moral Aim Thesis. In short, I argue that although there (...) are versions of the Moral Aim Thesis that are arguably compatible with legal positivism, all of the different ways of making it compatible face serious philosophical difficulties. Following a discussion of what these difficulties are, I provide an alternative to the Moral Aim Thesis, a thesis that I call the ‘Represented-as-Moral Thesis’. This thesis avoids the problems that I raise for the Moral Aim Thesis and better resonates with some of the core intuitions behind legal positivism. Furthermore, a version of Shapiro’s Planning Theory of Law that is developed with the Represented-as-Moral Thesis (as opposed to the Moral Aim Thesis) can explain all of the things that Shapiro uses the Moral Aim Thesis to explain. (shrink)

Ronald Dworkin famously argued that legal positivism is a defective account of law because it has no account of Theoretical Disagreement. In this article I argue that legal positivism—as advanced by H.L.A. Hart—does not need an account of Theoretical Disagreement. Legal positivism does, however, need a plausible account of interpretation in law. I provide such an account in this article.

Conklin's thesis is that the tradition of modern legal positivism, beginning with Thomas Hobbes, postulated different senses of the invisible as the authorising origin of humanly posited laws. Conklin re-reads the tradition by privileging how the canons share a particular understanding of legal language as written. Leading philosophers who have espoused the tenets of the tradition have assumed that legal language is written and that the authorising origin of humanly posited rules/norms is inaccessible to the written (...) legal language. Conklin's re-reading of the tradition teases out how each of these leading philosophers has postulated that the authorising origin of humanly posited laws is an unanalysable externality to the written language of the legal structure. As such, the authorising origin of posited rules/norms is inaccessible or invisible to their written language. What is this authorising origin? Different forms include an originary author, an a priori concept, and an immediacy of bonding between person and laws. In each case the origin is unwritten in the sense of being inaccessible to the authoritative texts written by the officials of civil institutions of the sovereign state. Conklin sets his thesis in the context of the legal theory of the polis and the pre-polis of Greek tribes. The author claims that the problem is that the tradition of legal positivism of a modern sovereign state excises the experiential, or bodily, meanings from the written language of the posited rules/norms, thereby forgetting the very pre-legal authorising origin of the posited norms that each philosopher admits as offering the finality that legal reasoning demands if it is to be authoritative. (shrink)

Legal positivism is one of the fundamental theories of jurisprudence studied in law and related fields around the world. This volume addresses how legal positivism is perceived and makes the case for why it is relevant for contemporary legal theory. The Cambridge Companion to Legal Positivism offers thirty-three chapters from leading scholars that provide a comprehensive commentary on the fundamental ideas of legal positivism, its history and major theorists, its connection to (...) normativity and values, its current development and influence, as well as on the criticisms moved against it. (shrink)

Positivismo jurídico normativo: de la metafísica a la política El presente trabajo toma como punto de partida el libro Positivismo jurídico “interno”, de María Cristina Redondo, y propone una concepción alternativa de positivismo jurídico normativista. Se sostiene que la teoría del derecho puede ser neutral en la medida en que sea intersubjetiva y transparente en cuanto a sus propias premisas metafísicas. Los objetivos del trabajo son el de echar luz acerca del papel de la metafísica y del sentido común en (...) la construcción del concepto de derecho, y el de hacer más abiertamente transparentes las elecciones ético-políticas que constituyen a los discursos jurídicos, incluidos los teóricos. El trabajo analiza las tesis de Redondo acerca de la distinción entre ontología y epistemología y la posibilidad de conocimiento objetivo: la idea central defendida es que la inter-subjetividad, y no la objetividad, debería ser el criterio apropiado para el positivismo jurídico normativista. Luego se examina el rol de la normatividad en el positivismo jurídico normativista, enfocándose en la naturaleza metafísica de la tesis de que el derecho pertenece a los campos de la normatividad y la razón práctica. Las secciones siguientes examinan las concepciones reduccionistas y anti-reduccionistas sobre las “entidades” jurídicas y la teoría de las fuentes del derecho. La sección final aborda la cuestión de la neutralidad valorativa de la teoría jurídica y analiza la posibilidad de describir el punto de vista interno de los participantes sin asumir compromiso alguno con la práctica jurídica existente. (shrink)

This paper centers upon the issue, within the project of analytic jurisprudence, of how to construe the status of the legal activities of a state when there is a disjuncture between a nation's formal legal commitments, such as those stated within a bill or charter of rights, and the way in which its officials actually engage in the practice of law, i.e., legislation and adjudication. Although there are two positions within contemporary legal theory which focus directly on (...) this issue (Inclusive and Exclusive Legal Positivism), neither is able to offer an acceptable descriptive-explanatory account of the variety of legal activities at play within such situations. Thus, tensions between legal formality and practice, existent in many legal systems today, can be used to delineate a theoretical gap in regard to our understanding of law. This paper serves to acknowledge that point, and suggests a possible constructive solution to the positivists' descriptive-explanatory problem. Furthermore, in taking seriously the gap between the normative orientation of a legal system and its de facto practice, this paper also suggests other areas within analytic jurisprudence that might be meaningfully informed by that issue. (shrink)

A theme of growing importance in both the law and philosophy and socio-legal literature is how regulatory dynamics can be identified and normative expectations met in an age when transnational actors operate on a global plane and in increasingly fragmented and transformative contexts. A reconsideration of established theories and axiomatic findings on regulatory phenomena is an essential part of this discourse. There is indeed an urgent need for discontinuity regarding what we know about, among other things, law, legality, sovereignty (...) and political legitimacy, power relations, institutional design and development, and pluralist dynamics of ordering under processes of globalisation and transnationalism. Making an important contribution to the scholarly debate on the subject, this volume features original and much-needed essays of theoretical and applied legal philosophy as well as socio-legal accounts that reflect on whether legal positivism has anything to offer to this intellectual enterprise. This is done by discussing whether global and transnational cultural, socio-political, economic, and juridical challenges as well as processes of diversification, fragmentation, and transformation reinforce or weaken legal positivists’ assumptions, claims, and methods. The themes covered include, but are not limited to, absolute and limited state sovereignty; the ‘new international legal positivism’; Hartian legal positivism and the ‘normative positivist’ account; the relationship between modern secularisation, social conventionalism, and meta-ontological issues of temporality in postnational jurisprudence; the social positivisation of human rights; the formation and content of jus cogens norms; feminist critique; the global and transnational migration of principles of justice and morality; the Vienna Convention on the Law of Treaties rule of interpretation; and the responsibility of transnational corporations. (shrink)

This paper deals with the possibility of faultless disagreement in law. It does this by looking to other spheres in which faultless disagreement appears to be possible, mainly in matters of taste and ethics. Three possible accounts are explored: the realist account, the relativist account, and the expressivist account. The paper tries to show that in the case of legal disagreements, there is a place for an approach that can take into account our intuitions in the sense that (...) class='Hi'>legal disagreements are genuine and at times faultless. (shrink)

This chapter discusses two different issues about the relationship between legal positivism and robust normativity (understood as the most authoritative kind of normativity to which we appeal). First, the chapter argues that, in many contexts when discussing “legal positivism” and “legal antipositivism”, the discussion should be shifted from whether legal facts are ultimately partly grounded in moral facts to whether they are ultimately partly grounded in robustly normative facts. Second, the chapter explores an important (...) difference within the kinds of arguments that legal philosophers give for the (purported) truth of legal positivism. The difference concerns whether (purportedly) robustly normative facts are appealed to as premises in those arguments or not. (A closely connected issue is whether (purportedly) normative facts that bear one or more important connections to robustly normative facts are appealed to in premises to those arguments.) The chapter argues that thinking about this dividing line helps people better situate the positivist/antipositivist dispute, better understand the space of views in legal philosophy, better evaluate those views, and avoid having merely verbal disputes. (shrink)

This article argues that legal positivism is best understood as a political tradition which rejects the Separation Thesis—the thesis that there is no necessary connection between law and morality. That tradition was committed for some time to eliminating the conceptual space in which the common law tradition and its style of reasoning operate. A genealogical reconstruction of the tradition shows that when positivist judges are forced to operate in that space, they have to adapt their own style of (...) reasoning to some of the constraints of that space. That most contemporary positivists will attempt to disown such judges is symptomatic of deep problems in contemporary positivism, problems which stem from the attempt to detach positivism from its political tradition. So a recent neo-Benthamite revival in legal theory is welcome. Not only does it reunite positivism with its political tradition, but it also opens the way for a productive debate between positivism and its critics. ‘As for the philosophical approach, once so lively and dominant, it seems at times today rather tired, and exhibits its unease by seeking revitalization in flirtations with the absurd. But the problems of legal theory remain as fascinating as they ever were, and, if there is any grand message in these essays, it is that the historical study of legal institutions may have more to offer to their solution than has yet been appreciated’.1. (shrink)

This book is an uncompromising defense of legal positivism that insists on the separability of law and morality. After distinguishing among three facets of morality, Kramer explores a variety of ways in which law has been perceived as integrally connected to each of those facets. The book concludes with a detailed discussion of the obligation to obey the law--a discussion that highlights the strengths of legal positivism in the domain of political philosophy as much as in (...) the domain of jurisprudence. (shrink)

The aim of the paper is that of discussing some recent antipositivist theses, with specific reference to the arguments that focus on the alleged incapability of legal positivism to understand and explain the complex normative structure of constitutional states. One of the central tenets of legal positivism (in its guise of ``methodological'' or ``conceptual'' positivism) is the theory of the separation between law and morality. On the assumption that in contemporary legal systems, constitutional law (...) represents a point of intersection between law and basic moral values, antipositivists contrast legal positivism with two main arguments. First, on a more general level, the positivist theory of the separation between law and morality is questioned; then, and consequently, the ``neutrality thesis'' in the juristic study of law is rejected. The author discusses both these antipositivist arguments, and offers a brief defence of methodological positivism. (shrink)

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. (shrink)

At the heart of this book is the age-old question of how law and morality are related. The legal positivist, insisting on the separation of the two, explicates the concept of law independently of morality. The author challenges this view, arguing that there are, first, conceptually necessary connections between law and morality and, second, normative reasons for including moral elements in the concept of law. While the conceptual argument alone is too limited to establish a sufficiently strong connection between (...) law and morality, and the normative argument alone fails to address the nature of law, the two arguments together support a nonpositivistic concept of law, toppling legal positivism qua comprehensive theory of law. (shrink)

In this article, I argue that - despite the absence of any clear influence of one theory on the other - the legal theories of Dworkin and Hegel share several similar and, at times, unique positions that join them together within a distinctive school of legal theory, sharing a middle position between natural law and legal positivism. In addition, each theory can help the other in addressing certain internal difficulties. By recognizing both Hegel and Dworkin as (...) proponents of a position lying in between natural law and legal positivist jurisprudence, we can gain clarity in why their general legal theories seem to fit uncomfortably, if indeed they can be said to fit at all, within so many different camps - while fitting comfortably in no particular camp - as well as highlight what has been overlooked. (shrink)

Alexy confronts the legal positivist view in this classic work of legal philosophy. He formulates an accessible concept of law that systematically links classical elements of legal positivism with nonpositivistic legal theory, challenging the prevailing orthodoxies of modern jurisprudence.

H.L.A. Hart described his classic book, The Concept of Law, as a work in «descriptive sociology», and his aspiration was to produce a general jurisprudence. He was less than successful in achieving both of these aims. This article attempts a comprehensive reconstruction of legal positivism in a manner that will render it more compatible with a sociological approach, and more amenable to the project of general jurisprudence. The label «socio-legal positivism» reflects the fact that this article (...) grafts the insights and orientation of socio-legal theory onto the core tenets of legal positivism. In the course of this reconstruction, certain traditional views of legal positivists, especially those regarding the function of law and the nature of the concept of law, are discarded or modified. A number of Hart's key insights are preserved, but resituated within a broader framework. And the relationship between legal positivism and natural law is altered dramatically. The result of this reconstruction is the foundation for the construction of a general jurisprudence that better fits the complex and variable situation of law in society today. (shrink)

In various works, Mark Greenberg has positioned himself as an important critic of legal positivism. He has made a transcendental attack on a metaphysical position that some notable legal positivists have held -- namely, that law is ultimately grounded in social facts. He has pressed legal positivism at a point of perceived vulnerability – the failure of such positivists to develop and defend a compelling theory of legal content. Moreover, in his Moral Impact Theory (...) of law, he preserves a necessary connection between legal obligations and good reasons for action that is absent in legal positivism. This last point may seem particularly attractive, even to those with positivist sympathies. One of his arguments against legal positivism relies heavily on what he calls "the bindingness hypothesis"—namely, the claim that it is part of the “nature of law” that it is “supposed to operate” so as to “arrange matters” to “reliably ensure” that its legal obligations are genuinely, all-things-considered, binding. I argue that Greenberg’s defense of the bindingness hypothesis fails. I attack two other defenses he raises for the Moral Impact theory: the assertion that the Moral Impact Theory makes it easy to account for our concern with law, with the implication that legal positivism cannot so easily account for that concern; and the claim that his Moral Impact Theory fits appellate practice better than some views. I show that these the arguments for the Moral Impact Theory are inadequate. In response to Greenberg’s further argument that the Moral Impact Theory rescues the idea of legal obligation as genuine obligation, I argue that the Moral Impact Theory does so at a very steep price – one that is not worth paying. (shrink)

I consider a puzzle that arises when the logical principle known as “deontic detachment” is applied to the law. It is not possible to accept the principle of deontic detachment in a legal setting while also accepting that the so-called “social facts thesis” applies to all legal propositions. According to the social facts thesis, the existence and content of law is determined by the attitudes or practices of legal officials. Abandoning deontic detachment is not an appropriate solution (...) to the problem—the puzzle can be recreated with other plausible closure principles. The problem can be solved by restricting the social facts thesis to legal rules, rather than applying it to all legal propositions. Properly construed the social facts thesis does not apply to facts about what legally ought to be the case. (shrink)

In this book, a distinguished international group of legal theorists re-examine legal positivism as a prescriptive political theory and consider its implications for the constitutionally defined roles of legislatures and courts. The issues are illustrated with recent developments in Australian constitutional law.