6
HERCULES

1. INTRODUCTION

For our purposes, the distinguishing feature of inclusive positivism is the claim that moral considerations can, but need not, figure properly in determinations of law, i.e., attempts to determine the existence or content of valid laws. Since moral considerations do seem to figure in this way, we have good reason to think that inclusive positivism is a better descriptive-explanatory theory of law than exclusive positivism.

But an important question arises at this point. Perhaps the appropriate conclusion to be drawn from our previous discoveries is not that inclusive positivism is the better theory, but that legal positivism is obviously inadequate because that theory is identical with exclusive positivism and the latter necessarily precludes political morality from the possible grounds of law. In other words, the appropriate conclusion may not be that we have reason to adopt a version of positivism, i.e. inclusive positivism, which provides conceptual space for morality in determinations of law, but that positivism must be abandoned altogether because it necessarily excludes morality from the possible grounds for valid law, and morality does sometimes seem to figure in this way. To put the point in a slightly different way, perhaps inclusive positivism is not really a version of positivism at all, but rather a theory which is not significantly different from Dworkin's integrity theory, or the natural-law theories of Aquinas and Augustine. As with inclusive positivism, each of these gives pride of place to moral factors in determinations of law. So perhaps we haven't discovered reasons for preferring a particular kind of positivism but reasons for rejecting positivism altogether in favour of a non-positivistic theory of law like Dworkin's integrity theory.

We have already seen one respect in which inclusive positivism differs from the integrity theory. The former is a general, descriptive-

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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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