In the preceding chapter I argued that inclusive positivism, which acknowledges the conceptual possibility of legally recognized or pedigreed moral tests for the validity and content of law is at the very least on a par theoretically with exclusive positivism which denies this possibility. At various stages in the argument reference was made to challenges to legal validity made under documents like the Canadian Charter of Rights and Freedoms. It was suggested that these charter challenges seem typically to involve substantive moral arguments purporting to undermine legal validity. I suggested that it is mistaken to view such challenges as anything but attempts to demonstrate either that pedigreed criteria for legal validity have not been satisfied, and that what seems to be valid law is in fact no law at all, or that a law must be understood or interpreted in such a way that it does not infringe upon a pedigreed moral right protected by the Charter. In the former instance, morality figures in arguments purporting to challenge the existence of valid law. In the latter case, it figures in arguments intended to establish the content of valid law, the law contained within the instruments (for example, the statutes or precedents) employed for its expression. If this view of charter challenges is correct, then it follows that the existence and content of law does sometimes depend on moral factors. It further follows that any version of positivism which accepts this as a theoretical possibility is, on that account alone, superior to any version which does not.

The primary objective of the present chapter is to develop further the suggestion that inclusive positivism is a better theory of law than exclusive positivism because it offers a better theoretical account of charter challenges. In pursuing this objective, I shall be discharging a debt incurred earlier when the reader was asked simply to assume that moral arguments do figure sometimes in charter challenges,


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Inclusive Legal Positivism


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