Abstract

http://ssrn.com/abstract=1742569
 


 



The Moral Dilemma of Positivism


Anthony D'Amato


Northwestern University - School of Law

January 17, 2011

Valparaiso University Law Review, Vol. 20, No. 1, pp. 43-53, 1985-1986
Northwestern Public Law Research Paper No. 11-01

Abstract:     
I think there has been an advance in positivist thinking, and that advance consists of the recognition by MacCormick, a positivist, that positivism needs to be justified morally (and not just as an apparent scientific and objective fact about legal systems). But the justification that is required cannot consist in labeling "sovereignty of conscience" as a moral principle, nor in compounding the confusion by claiming that positivism minimally and hence necessarily promotes sovereignty of conscience. We need, from the positivists, a more logical and coherent argument than that. Until one comes along, I continue to believe that positivists inherently have a difficult time in dealing with moral questions once they begin by insisting that law and morality are and ought to be separate from each other.

Number of Pages in PDF File: 10

Keywords: Positivism, Legal Positivism, Natural Law, Law and Morality, MacCormick (Neil)

JEL Classification: K10, K19, K49

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Date posted: January 18, 2011  

Suggested Citation

D'Amato, Anthony, The Moral Dilemma of Positivism (January 17, 2011). Valparaiso University Law Review, Vol. 20, No. 1, pp. 43-53, 1985-1986; Northwestern Public Law Research Paper No. 11-01. Available at SSRN: http://ssrn.com/abstract=1742569

Contact Information

Anthony D'Amato (Contact Author)
Northwestern University - School of Law ( email )
375 E. Chicago Ave
Unit 1505
Chicago, IL 60611
United States
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