Inclusive Legal Positivism, Legal Interpretation, and Value‐Judgments

Abstract

In this paper I put forward some arguments in defence of inclusive legal positivism. The general thesis that I defend is that inclusive positivism represents a more fruitful and interesting research program than that proposed by exclusive positivism. I introduce two arguments connected with legal interpretation in favour of my thesis. However, my opinion is that inclusive positivism does not sufficiently succeed in estranging itself from the more traditional legal positivist conceptions. This is the case, for instance, with regard to the value-freedom principle, which is commonly accepted by inclusive positivist scholars. In contrast with this approach, I try to show, in the concluding section, how a constructivistic version of inclusive positivism could legitimately acknowledge the presence of value-judgments in the cognitive activities of jurists and legal theorists.

Positivism, Legal Validity, and the Separation of Law and Morals

“…Definitions of legal positivism along similar lines are offered, e.g., by Ross ; Nino , 520; MacCormick ; Coleman ; Lyons , 722; Coleman and Leiter , 243; Leiter , 122; , 66; Kramer , 11; Villa .…”

“…This kind of argument in favour of the revision of standard positivism is well exemplified, for instance, in Waluchow , 6–7, and chap. 5; Moreso , 38; Villa , 111, 115–6.…”