The place of legal positivism in contemporary constitutional states

Law and Philosophy 18 (5):513-536 (1999)
  Copy   BIBTEX

Abstract

The aim of the paper is that of discussing some recent antipositivist theses, with specific reference to the arguments that focus on the alleged incapability of legal positivism to understand and explain the complex normative structure of constitutional states. One of the central tenets of legal positivism (in its guise of ``methodological'' or ``conceptual'' positivism) is the theory of the separation between law and morality. On the assumption that in contemporary legal systems, constitutional law represents a point of intersection between law and basic moral values, antipositivists contrast legal positivism with two main arguments. First, on a more general level, the positivist theory of the separation between law and morality is questioned; then, and consequently, the ``neutrality thesis'' in the juristic study of law is rejected. The author discusses both these antipositivist arguments, and offers a brief defence of methodological positivism.

Links

PhilArchive



    Upload a copy of this work     Papers currently archived: 91,252

External links

Setup an account with your affiliations in order to access resources via your University's proxy server

Through your library

Analytics

Added to PP
2009-01-28

Downloads
98 (#171,785)

6 months
10 (#235,055)

Historical graph of downloads
How can I increase my downloads?

Citations of this work

An Axiomatic Theory of Law.Paolo Sandro - 2011 - Res Publica 17 (4):343-354.
Unlocking Legal Validity: Some Remarks on the Artificial Ontology of Law.Paolo Sandro - 2018 - In Anne Mackor, Stephan Kirste, Jaap Hage & Pauline Westerman (eds.), Legal Validity and Soft Law. Cham: Springer Verlag.

Add more citations

References found in this work

No references found.

Add more references