Was inclusive legal positivism founded on a mistake?

Ratio Juris 22 (3):326-338 (2009)
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Abstract

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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References found in this work

Intention, plans, and practical reason.Michael Bratman - 1987 - Cambridge: Cambridge, MA: Harvard University Press.
The concept of law.Hla Hart - 1963 - New York: Oxford University Press.
Taking rights seriously.Ronald Dworkin (ed.) - 1977 - London: Duckworth.
The Concept of Law.Stuart M. Brown - 1963 - Philosophical Review 72 (2):250.

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