10 Pages Posted: 18 Jan 2011
Date Written: January 17, 2011
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: 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