Beyond the distinction between positivism and non-positivism

Ratio Juris 22 (3):311-325 (2009)
Abstract
In this article I discuss a number of issues raised by Professor Jules Coleman's recent article "Beyond the Separability Thesis." I suggest, to begin, that Coleman is correct that neither a narrow nor a broad formulation of the separability thesis takes us very far towards a robust distinction between legal positivism and legal non-positivism. I then offer a brief discussion of methodology in jurisprudence, suggesting that Coleman accepts, at least implicitly, what I call a "methodology of necessary features." Since there is reason to think that law possesses some necessary features that are non-normative (or descriptive) and others that are moral in character, the promise of this pluralistic approach is that it will be capable of bridging the gap between so-called "descriptive" and "normative" theories of methodology in jurisprudence. Since the distinction between descriptive and normative methodological theories is sometimes taken to be one way, among others, of drawing a distinction between positivist and non-positivist theories of law, the pluralism of the "methodology of necessary features" gives us yet one more reason to think that the distinction between positivism and non-positivism is not a theoretically fundamental one. Finally, I discuss Coleman's "moral semantics claim," i.e., the idea that "legal content is best understood as moral directives about what is to be done and who is to decide what is to be done." Coleman acknowledges that the moral semantics claim, when taken together with the social facts thesis, raises a well-known problem: How can social facts create content-independent reasons for action? I suggest that we are most likely to find the answer to this question by focusing directly on whether or not law's claimed moral authority—meaning its claimed moral power—can be justified, rather than by focusing indirectly, as many theorists have done, on the existence or non-existence of a general obligation to obey the law.
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References found in this work BETA
John Gardner (2001). Legal Positivism: 5½ Myths. American Journal of Jurisprudence 46 (1):199-227.

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