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The Moral Dilemma of Positivism

10 Pages Posted: 18 Jan 2011  

Date Written: January 17, 2011

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.

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

JEL Classification: K10, K19, K49

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: https://ssrn.com/abstract=1742569

Anthony D'Amato (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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