Book contents
- The Cambridge Companion to Legal Positivism
- Cambridge Companions to Law
- The Cambridge Companion to Legal Positivism
- Copyright page
- Contents
- Figures
- Contributors
- Acknowledgements
- 1 Introduction
- Part I Fundamentals
- Part II History
- Part III Central Figures
- Part IV Main Tenets
- 17 Social-Practice Legal Positivism and the Normativity Thesis
- 18 Social Facts and Legal Facts: Perils of Hume’s Guillotine
- 19 The Scope of Legal Positivism: Validity or Interpretation?
- 20 What Is Law and What Counts as Law? The Separation Thesis in Context
- 21 The Origins of Inclusive Legal Positivism
- 22 Disruptive Implications of Legal Positivism’s Social Efficacy Thesis
- 23 The Semantic Thesis in Legal Positivism
- Part V Normativity and Values
- Part VI Critique
- Index
- References
21 - The Origins of Inclusive Legal Positivism
from Part IV - Main Tenets
Published online by Cambridge University Press: 21 January 2021
- The Cambridge Companion to Legal Positivism
- Cambridge Companions to Law
- The Cambridge Companion to Legal Positivism
- Copyright page
- Contents
- Figures
- Contributors
- Acknowledgements
- 1 Introduction
- Part I Fundamentals
- Part II History
- Part III Central Figures
- Part IV Main Tenets
- 17 Social-Practice Legal Positivism and the Normativity Thesis
- 18 Social Facts and Legal Facts: Perils of Hume’s Guillotine
- 19 The Scope of Legal Positivism: Validity or Interpretation?
- 20 What Is Law and What Counts as Law? The Separation Thesis in Context
- 21 The Origins of Inclusive Legal Positivism
- 22 Disruptive Implications of Legal Positivism’s Social Efficacy Thesis
- 23 The Semantic Thesis in Legal Positivism
- Part V Normativity and Values
- Part VI Critique
- Index
- References
Summary
Waluchow considers inclusive and exclusive legal positivism, first explaining that the idea behind the separation thesis is that there is nothing in the bare notion of law that guarantees that law has any degree of moral merit. He presents Ronald Dworkin’s challenge to the separation thesis, i.e., that since law necessarily consists not only of the so-called settled law (statutes, precedents, etc.) but also of the principles of political morality that are part of the best constructive interpretation of the settled law, the connection between what the law is and what the law ought to be is much stronger than the separation thesis allows for. He considers responses to Dworkin’s challenge: exclusive positivists insist that the separation thesis, properly understood, has it that, as a conceptual matter, legal validity cannot depend on morality, while inclusive positivists maintain that the thesis has it that legal validity can, but need not, depend on morality. Finally, Waluchow rejects Joseph Raz’s argument from authority, which supports the exclusivist interpretation, while accepting Jules Coleman’s argument from convention, which supports the inclusivist interpretation.
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- Information
- The Cambridge Companion to Legal Positivism , pp. 487 - 511Publisher: Cambridge University PressPrint publication year: 2021
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