Farewell to 'legal positivism': The separation thesis unravelling

In Robert P. George (ed.), The Autonomy of Law: Essays on Legal Positivism. Oxford University Press. pp. 119--62 (1996)
  Copy   BIBTEX

Abstract

H. L. A Hart complained about the ambiguity of legal positivism, and proposed a definition that refers to particular explications of the concept of law, to certain theories of legal interpretation, to particular views on the moral problem of a duty to obey the law, and to a sceptical position with regard to the meta-ethical issue of the possibility of moral knowledge. It is said to be restricted to the Thesis of Separation — the contention that there is no necessary connection between law and morals. In this chapter, the Separation Thesis is discussed even further, and has three shortcomings identified: first, that it has been vacillating between object-level contentions about moral qualities of the law; that the precise logical relation between both levels has never been properly accounted for; and that the question of necessary relations between morality and law hinges crucially on the presupposition that the very concept of law itself does not unravel into different sets of convenient stipulations from different epistemological angles, each of which renders the question of such necessary relations trivial. The Separation Thesis is also identified as having two versions: the Fallibility Law and the Neutrality Law.

Links

PhilArchive



    Upload a copy of this work     Papers currently archived: 91,202

External links

  • This entry has no external links. Add one.
Setup an account with your affiliations in order to access resources via your University's proxy server

Through your library

Similar books and articles

Analytics

Added to PP
2014-01-31

Downloads
9 (#1,181,695)

6 months
1 (#1,444,594)

Historical graph of downloads
How can I increase my downloads?

Citations of this work

Legal reasoning and legal theory revisited.Fernando Atria - 1999 - Law and Philosophy 18 (5):537-577.
Autonomous Constitutional Interpretation.Tomasz Stawecki - 2012 - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 25 (4):505-535.

Add more citations

References found in this work

No references found.

Add more references