Was inclusive legal positivism founded on a mistake?

Ratio Juris 22 (3):326-338 (2009)
In this paper, I present a new argument against inclusive legal positivism. As I show, any theory which permits morality to be a condition on legality cannot account for a core feature of legal activity, namely, that it is an activity of social planning. If the aim of a legal institution is to guide the conduct of the community through plans, it would be self-defeating if the existence of these plans could only be determined through deliberation on the merits. I also argue that, insofar as inclusive legal positivism was developed as a response to Ronald Dworkin's critique of H. L. A. Hart's theory of law, it was founded on a mistake. For once we appreciate the role that planning plays in legal regulation, we will see that Dworkin's objection is based on a flawed conception of legal obligations and rights and hence does not present an objection that inclusive legal positivists were required to answer.
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DOI 10.1111/j.1467-9337.2009.00428.x
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Michael Bratman (1987/1999). Intention, Plans, and Practical Reason. Center for the Study of Language and Information.

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