This Element defends and clarifies the thesis that the legality of a system of rules depends on its moral features. Positivists who deny this dependence struggle to explain: (1) the traditional classification of moral norms as a form of a priori law; (2) judicial reliance on moral norms in legal discovery; (3) persistent theoretical disagreement about intra-systemic, law-determining facts; (4) why radically arbitrary or immoral schemes of social organization represent borderline cases of law; and (5) why law, like other artifacts, can be evaluated in a kind-relative sense (“as law”). Meanwhile, traditional versions of non-positivism overstate the dependence going further than the desiderata warrant. A moderate theory is formulated: law is an artifact whose existence depends on adequately performing an essentially normative function. The theory's justification lies in its explanatory power: a comparison with other “value-driven” artifacts, such as artworks, proves vital for understanding legal language, reasoning, and practice.
By:
Emad H. Atiq (Cornell University) Imprint: Cambridge University Press Country of Publication: United Kingdom Dimensions:
Height: 229mm,
Width: 152mm,
Spine: 6mm
Weight: 271g ISBN:9781009539128 ISBN 10: 1009539124 Series:Elements in Philosophy of Law Pages: 92 Publication Date:20 February 2025 Audience:
General/trade
,
ELT Advanced
Format:Hardback Publisher's Status: Active
1. Introduction: subject matter and methodology; 2. The argument against positivism; 3. How to be a legal non-positivist; 4. Outstanding questions; References.
