Negative and positive positivism

Abstract

This chapter presents and defends a version of legal positivism, relying on two distinctions: one between epistemic and ontological conceptions of the rule of recognition, and the other between negative and positive positivism. The chapter argues that positivism is committed to the rule of recognition as a semantic or ontological rule only, and that its essential positive claim is that the authority of law everywhere is a matter of social convention. These points, taken together, make legal positivism both interesting and defensible. Because negative positivism is essentially a negative thesis, it cannot be undermined by counter-examples, any one of which would show only that, in some community or other, morality is a condition of legality at least for some norms.

Theoretical Disagreement, Legal Positivism, and Interpretation

“…As Hart himself acknowledged, Dworkin’s early criticisms of Hart’s positivism were deemed to be “helpful” in that Dworkin drew attention to the important role played by principles in deciding hard cases. In a sentence that was later to prove important in the division of positivism into the Inclusive and Exclusive camps, Dworkin (, 40) said that principles found their way into law not by virtue of pedigree but owing to “a sense of appropriateness developed in the profession.” With the acknowledgement that Hart never argued for a strict test of pedigree as the ground of validity, the stage was set for the appropriation of Dworkin’s criticisms by what came to be known as Inclusive Legal Positivists (see Coleman, ).…”

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

“…More precisely, what is known as inclusive positivism reframes the separability thesis as a mere logical or conceptual possibility. It claims that it is conceptually possible—that it is at least conceivable—that a legal system exists in which morality is not a criterion of legal validity (the separability thesis becomes tantamount to “conceptual possibility of separation” between law and morality: Coleman , 141, 143; Himma , 136)—admittedly, a rather trivial thesis, one that nobody would ever dare to deny (Coleman , 151, 152–3; Schauer and Wise , 1087).…”

Rewriting Hart's Postscript: Thoughts on the Development of Legal Positivism

“…36 What Hart does descriptively is to emphasise the de facto overlap of law and morals in language, function and content. What he could have done normatively is to encourage a conceptual distance between law and morals in which his liberal utilitarian aims can flourish.…”