Abstract

In this paper, I present a critique of inclusive positivism. Inclusive positivism is an untenable position, I argue, because the connection between law and critical morality is conceptual and thus more than merely an accident or a possibility: at the foundation of law we find social facts, but we also and importantly find moral evaluations. This thesis is supported by an argument showing in essence that law cannot exist apart from justification and that justification is a morally coloured practice. For justification proceeds from directives freighted with values. A directive in turn acquires values (and so becomes justifiable) by meeting certain requirements: not those of instrumental reason or of prudential reason, but those of morality, and not just any morality, but critical morality.