The Autonomy of Law: Essays on Legal Positivism

The Autonomy of Law: Essays on Legal Positivism

The Autonomy of Law: Essays on Legal Positivism

The Autonomy of Law: Essays on Legal Positivism

Synopsis

This collection of original papers from distinguished legal theorists offers a challenging assessment of the nature and viability of legal positivism, a branch of legal theory which continues to dominate contemporary legal theoretical debates. To what extent is the law adequately described as autonomous? Should law claim autonomy? These and other questions are addressed by the authors in this carefully edited collection, and it will be of interest to all lawyers and scholars interested in legal philosophy and legal theory.

Excerpt

Legal positivism has been both criticised and praised unjustly. For example, critics have denounced the alleged amoralism and moral relativism of positivism's insistence on a'conceptual separation' of law and morality. Supporters have praised positivism for importing into legal philosophy the putative valueneutrality of the scientific method.

Recent work shows, however, that nothing in the 'conceptual separation' thesis commits the legal positivist to the proposition that there is no moral truth or that moral propositions are necessarily subjective or relative. Nor do sophisticated positivists contend that law, as a phenomenon (or set of phenomena) constituted in considerable part by human deliberation, judgement, and choice, can be properly studied by methods which entirely prescind from normative (or 'practical') questions.

True, the legal positivist is mainly concerned to produce a rich and accurate description of law and legal systems as they function in human societies. So the positivist aspires to avoid confusing 'law as it is', in the system or society under study, with 'law as it should be', in his own best moral and political judgement. This is the element of truth in the claim, whether offered by way of criticism or praise, that legal positivism aspires to the 'neutrality' of the natural sciences. But to insist on the distinction between 'law as it is' and 'law as it should be' is not to deny (though a particular positivist may, of course, happen to deny, as Hans Kelsen, for example, denied) that the moral criticism of law, or moral propositions generally, can be objective (as opposed to subjective), universal (as opposed to individually or culturally relative) or, in a word, true. Nor is it necessarily to deny the relevance of moral objectivity, universality, and truth to legal or other social scientific enquiry.

Traditionally, 'legal positivism' has been juxtaposed with natural law theory' in such a way as to suggest that there is a central proposition the affirmation or denial of which places a theorist of law in one camp or the other. Work by thinkers . . .

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