Contemporary Non-Positivism

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.

List of contents

1. Introduction: subject matter and methodology; 2. The argument against positivism; 3. How to be a legal non-positivist; 4. Outstanding questions; References.

Product details

• Authors: Emad H. Atiq, Emad H. (Cornell University) Atiq
• Publisher: Cambridge University Press ELT
• Languages: English
• Product format: Hardback
• Released: 20.02.2025
• EAN: 9781009539128
• ISBN: 978-1-0-0953912-8
• No. of pages: 92
• Series: Elements in Philosophy of Law
• Subjects: Non-fiction book > Philosophy, religion > Philosophy: general, reference works; Social sciences, law, business > Law > General, dictionaries; PHILOSOPHY / General, Ethics & moral philosophy, Philosophy: metaphysics & ontology, Philosophy: metaphysics and ontology, Ethics and moral philosophy, Jurisprudence & Philosophy Of Law, Methods, theory and philosophy of law