1
INTRODUCTION

1. INDETERMINATE BOUNDARIES

Legal theory is in a perplexing state. Traditional boundaries between rival views have been blurred to the point where one wonders just what the issues are and whether the protagonists are more often than not arguing at cross purposes. On the one hand we have apparently dyed-in-the-wool legal positivists like Joseph Raz and Neil MacCormick claiming that it is perfectly consistent with legal positivism to suggest that law, as an important social institution, necessarily has some moral merit. According to MacCormick, 'legal systems have as such a certain moral value in virtue of the formal (and of itself amoral) character which positivist theories ascribe to them; but this is only an inconclusive and readily overrideable element of moral value.'1 How does one reconcile this position with John Austin's famous battle-cry of legal positivism that the existence of law is one thing, its merit or demerit quite another? Is there not a contradiction here?

On the other hand, one finds John Finnis, whose contemporary theory of natural law seems about as close as one can get to the traditional natural law theories of Aquinas and Augustine, suggesting that it was never a major concern of classical natural lawyers to deny legal validity to unjust state enactments. One wonders just what it is, then, that characterizes the natural-law tradition and how one is to interpret Augustine's famous claim, thought to be definitive of that approach, that 'an unjust law seems to be no law at all'. Isn't there a contradiction here too? Someone approaching legal philosophy for the first time couldn't help but be terribly confused by all this. Those more familiar with the path taken by general jurisprudence over the past several years would be forced to admit to at least a tiny bit of perplexity and concern. If positivism isn't the view that law does not necessarily have moral merit, that wicked legal

____________________
1
MacCormick, "A Moralistic Case for A-Moralistic Law?", 27.

-1-

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Inclusive Legal Positivism
Table of contents

Table of contents

  • Title Page iii
  • Acknowledgements vi
  • Contents ix
  • 1: Introduction 1
  • 2 - Theories and Conceptions 9
  • 3 - The Forces of Law 31
  • 4 - Inclusive V. Exclusive Positivism 80
  • 5 - Charter Challenges 142
  • 6 - Hercules 166
  • 7 - Discretion and Legal Theory 191
  • 8 - Morals and the Meaning of Laws 232
  • References 273
  • Table of Cases 281
  • Index 283
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