Skip to main content Accessibility help
×
Hostname: page-component-848d4c4894-m9kch Total loading time: 0 Render date: 2024-05-12T17:47:36.027Z Has data issue: false hasContentIssue false

21 - The Origins of Inclusive Legal Positivism

from Part IV - Main Tenets

Published online by Cambridge University Press:  21 January 2021

Torben Spaak
Affiliation:
Stockholms Universitet
Patricia Mindus
Affiliation:
Uppsala Universitet, Sweden
Get access

Summary

Waluchow considers inclusive and exclusive legal positivism, first explaining that the idea behind the separation thesis is that there is nothing in the bare notion of law that guarantees that law has any degree of moral merit. He presents Ronald Dworkin’s challenge to the separation thesis, i.e., that since law necessarily consists not only of the so-called settled law (statutes, precedents, etc.) but also of the principles of political morality that are part of the best constructive interpretation of the settled law, the connection between what the law is and what the law ought to be is much stronger than the separation thesis allows for. He considers responses to Dworkin’s challenge: exclusive positivists insist that the separation thesis, properly understood, has it that, as a conceptual matter, legal validity cannot depend on morality, while inclusive positivists maintain that the thesis has it that legal validity can, but need not, depend on morality. Finally, Waluchow rejects Joseph Raz’s argument from authority, which supports the exclusivist interpretation, while accepting Jules Coleman’s argument from convention, which supports the inclusivist interpretation.

Type
Chapter
Information
Publisher: Cambridge University Press
Print publication year: 2021

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Aquinas, St Thomas. 1485. Summa Theologica. Various editions.Google Scholar
Austin, J. 1954. The Providence of Jurisprudence Determined. Weidenfeld and Nicholson.Google Scholar
Coleman, J. 1998. ‘Incorporationism, Conventionality, and the Practical Difference Thesis’. Legal Theory 4: 381426.Google Scholar
Dworkin, R. 1975. ‘Hard Cases’. Harvard Law Review 88: 10571109.CrossRefGoogle Scholar
Dworkin, R. 1977. Taking Rights Seriously. Duckworth.Google Scholar
Dworkin, R. 1986. Law’s Empire. Harvard University Press.Google Scholar
Green, L. 2008. ‘Positivism and the Inseparability of Law and Morals’. New York University Law Review 83: 1035–58.Google Scholar
Hart, H. L. A. 1994. The Concept of Law. 2nd ed. Oxford University Press.Google Scholar
Himma, K. 2001. ‘Law’s Claim of Legitimate Authority’. In Coleman, J. (ed.). Hart’s Postscript. Oxford University Press: 271310.Google Scholar
Himma, K. 2002. ‘Substance and Method in Conceptual Jurisprudence and Theory’. Virginia Law Review 88: 11201208.Google Scholar
Kramer, M. 2004. Where Law and Morality Meet. Oxford University Press.Google Scholar
Marmor, A. 2007. Law in the Age of Moral Pluralism. Oxford University Press.Google Scholar
Postema, G. J. 1982. ‘Coordination and Convention at the Foundations of Law’. Journal of Legal Studies 11: 165203.Google Scholar
Raz, J. 1972. ‘Legal Principles and the Limits of Law’. Yale Law Journal 81: 823–54.Google Scholar
Raz, J. 1979. The Authority of Law. Oxford University Press.Google Scholar
Raz, J. 1985a. ‘Authority and Justification’. Philosophy and Public Affairs 14: 329.Google Scholar
Raz, J. 1985b. ‘Authority, Law and Morality’. The Monist 3: 295324.Google Scholar
Raz, J, 1986. The Morality of Freedom. Clarendon Press.Google Scholar
Raz, J. 1996. ‘The Inner Logic of the Law’. In Raz, J.. Ethics in the Public Domain: Essays in the Morality of Law and Politics. Revised ed. Clarendon Press: 238–53.Google Scholar
Sartorius, R. 1975. Individual Conduct and Social Norms. Dickenson Publishing Company.Google Scholar
Shapiro, S. 1998. ‘On Hart’s Way Out’. Legal Theory 4: 469507.Google Scholar
Shapiro, S. 2000. ‘Law, Morality, and the Guidance of Conduct’. Legal Theory 6: 127–70.CrossRefGoogle Scholar
Waluchow, W. J. 1994. Inclusive Legal Positivism. Clarendon Press.Google Scholar
Waluchow, W. J. 2000. ‘Authority and the Practical Difference Thesis: A Defence of Inclusive Legal Positivism’. Legal Theory 6: 4581.CrossRefGoogle Scholar

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×