There are No Easy Counterexamples to Legal Anti-positivism
Legal anti-positivism is widely believed to be a general theory of law that generates far too many false negatives. If anti-positivism is true, certain rules bearing all the hallmarks of legality are not in fact legal. This impression, fostered by both positivists and anti-positivists, stems from an...
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| Published in | Journal of ethics & social philosophy Vol. 17; no. 1 |
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| Main Author | |
| Format | Journal Article |
| Language | English |
| Published |
18.10.2019
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| Online Access | Get full text |
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| Summary: | Legal anti-positivism is widely believed to be a general theory of law that generates far too many false negatives. If anti-positivism is true, certain rules bearing all the hallmarks of legality are not in fact legal. This impression, fostered by both positivists and anti-positivists, stems from an overly narrow conception of the kinds of moral facts that ground legal facts: roughly, facts about what is morally optimific—morally best or morally justified or morally obligatory given our social practices. A less restrictive view of the kinds of moral properties that ground legality results in a form of anti-positivism that can accommodate any legal rule consistent with positivism, including the alleged counter-examples. This form of “inclusive” anti-positivism is not just invulnerable to extensional challenges from the positivist. It is the only account that withstands extensional objections, while incorporating, on purely conceptual grounds, a large part of the content of morality into law. |
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| ISSN: | 1559-3061 1559-3061 |
| DOI: | 10.26556/jesp.v17i1.701 |