David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Ratio Juris 22 (3):311-325 (2009)
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.
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
Jules L. Coleman (2007). Beyond the Separability Thesis: Moral Semantics and the Methodology of Jurisprudence. Oxford Journal of Legal Studies 27 (4):581-608.
John Finnis (1980/1979). Natural Law and Natural Rights. Oxford University Press.
John Gardner (2001). Legal Positivism: 5½ Myths. American Journal of Jurisprudence 46 (1):199-227.
H. L. A. Hart (1983). Essays in Jurisprudence and Philosophy. Oxford University Press.
H. L. A. Hart (1994). The Concept of Law. Oxford University Press.
Citations of this work BETA
No citations found.
Similar books and articles
Kenneth M. Ehrenberg (2011). The Anarchist Official: A Problem for Legal Positivism. Australian Journal of Legal Philosophy 36:89-112.
James Morauta (2004). Three Separation Theses. Law and Philosophy 23 (2):111-135.
Brian Bix (2006). Legal Positivism and 'Explaining' Normativity and Authority. American Philosophical Association Newsletter 5 (2 (Spring 2006)):5-9.
Matthew H. Kramer (1999). In Defense of Legal Positivism: Law Without Trimmings. Oxford University Press.
Peter Rijpkema (2011). The Inevitability of Moral Evaluation. Ratio Juris 24 (4):413-434.
Francois Chevrette & Hugo Cyr, Legal Positivism? What Are You Talking About? ('De Quel Positivisme Parlez-Vous?').
G. Pino (1999). The Place of Legal Positivism in Contemporary Constitutional States. Law and Philosophy 18 (5):513-536.
Kenneth Einar Himma (2009). Positivism and Interpreting Legal Content: Does Law Call for a Moral Semantics? Ratio Juris 22 (1):24-43.
Robert Alexy (2008). On the Concept and the Nature of Law. Ratio Juris 21 (3):281-299.
Jules L. Coleman (2009). Beyond Inclusive Legal Positivism. Ratio Juris 22 (3):359-394.
Added to index2009-08-27
Total downloads44 ( #36,246 of 1,096,602 )
Recent downloads (6 months)6 ( #38,814 of 1,096,602 )
How can I increase my downloads?