This paper makes a conceptual prescription: it argues that judges and lawyers should adopt a positivist concept of law, on normative grounds. The positivist view, I will argue, is more consistent with reasonable disagreement and majority rule than nonpositivist views, offers a better view of law’s moral standing, and is more consistent with what Dworkin called ‘integrity’ than non-positivism. As the paper explains, this is an argument about what I call the ‘operative’ concept of law. As such, the argument avoids (...) potential problems for conceptual prescription, and shows why even those who adopt non-positivist views about the nature of law might accept it. (shrink)

This article claims that private law theorists ought to bear in mind the distinction between wholesale questions about the best interpretation or justification of legal institutions, and retail que...