PHILOS 3Q03 Chapter 9: What Legal Positivism Isn’t - W.J. Waluchow [ Required Reading Summary ]
8 May 2018
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What Legal Positivism Isn’t - W.J. Waluchow !
-Philosophical debate is ridden with dichotomies (objective vs subjective truths, Cognitivism
vs Non- Cognitivism; morals able to determine truth or not, Volunteerism vs determinism;
free will vs cause and effect of reality, !
-Likewise, there is Natural Law Theory and Legal Positivism (God’s will vs Human’s Will)!
-Austin depicts the separation theory, however it is disputed weather it is a conceptual thesis,
a factual or descriptive thesis, a moral thesis, an interpretive thesis, a methodological thesis,
or some combination of these.!
-Exclusive Legal Positivism: Law can never be determined through morals !
-Inclusive Legal Positivism: Law can, at least in part, be aligned with morals !
-Descriptive Exclusive Legal Positivism : FACT that there is no legal system that uses morals
to determine laws !
-Descriptive Inclusive Legal Positivism: FACT that these is legal systems that determine their
laws or align their laws with morals !
-Campbell’s theories include
•Ethical Positivism: as a matter of sound political morality, the interpretation of laws ought
to be kept as away as possible from the morals that go into determining laws !
-Klaus Fusser!
•noted confusion about the objective-level and meta-level claims of positivist and their
critics !
•Objective-Level : are the laws itself !
•Meta-Level are about the theories of law, and the definitions within it !
•Neutral Rationale Thesis: should not make arguments for adopting legal practices or
changes to practices from a moral standpoint !
•Neutral Description Thesis: it is enlightening for philosophical academics to engage in
describing a legal system as it is without mentioned morals !
-Fallibility Thesis - law has no reason to align itself with morals !
-Finnis!
•you cannot understand law independently of judging the moral principles that confirm its
moral authority (very important for understanding how Nazi law came to be and preventing
it from happening in the future) !
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Document Summary
Philosophical debate is ridden with dichotomies (objective vs subjective truths, cognitivism vs non- cognitivism; morals able to determine truth or not, volunteerism vs determinism; free will vs cause and e ect of reality, Likewise, there is natural law theory and legal positivism (god"s will vs human"s will) Austin depicts the separation theory, however it is disputed weather it is a conceptual thesis, a factual or descriptive thesis, a moral thesis, an interpretive thesis, a methodological thesis, or some combination of these. Exclusive legal positivism: law can never be determined through morals. Inclusive legal positivism: law can, at least in part, be aligned with morals. Descriptive exclusive legal positivism : fact that there is no legal system that uses morals to determine laws. Descriptive inclusive legal positivism: fact that these is legal systems that determine their laws or align their laws with morals.
