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Contemporary Non-Positivism

Expected online publication date:  20 February 2025

Emad H. Atiq
Affiliation:
Cornell University

Summary

This Element defends and clarifies the thesis that the legality of a system of rules depends on its moral features. Positivists who deny this dependence struggle to explain: (1) the traditional classification of moral norms as a form of a priori law; (2) judicial reliance on moral norms in legal discovery; (3) persistent theoretical disagreement about intra-systemic, law-determining facts; (4) why radically arbitrary or immoral schemes of social organization represent borderline cases of law; and (5) why law, like other artifacts, can be evaluated in a kind-relative sense (“as law”). Meanwhile, traditional versions of non-positivism overstate the dependence going further than the desiderata warrant. A moderate theory is formulated: law is an artifact whose existence depends on adequately performing an essentially normative function. The theory's justification lies in its explanatory power: a comparison with other “value-driven” artifacts, such as artworks, proves vital for understanding legal language, reasoning, and practice.
Type
Element
Information
Online ISBN: 9781009288293
Publisher: Cambridge University Press

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Contemporary Non-Positivism
  • Emad H. Atiq, Cornell University
  • Online ISBN: 9781009288293
Available formats No formats are currently available for this content.
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Contemporary Non-Positivism
  • Emad H. Atiq, Cornell University
  • Online ISBN: 9781009288293
Available formats No formats are currently available for this content.
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To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Contemporary Non-Positivism
  • Emad H. Atiq, Cornell University
  • Online ISBN: 9781009288293
Available formats No formats are currently available for this content.
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