Positivism, Legal Validity, and the Separation of Law and Morals

Ratio Juris, 2013 (Forthcoming)

25 Pages Posted: 23 Jan 2013 Last revised: 31 Jan 2013

Giorgio Pino

University of Palermo - School of Law - Dipartimento di Studi su Politica Diritto e Società

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Date Written: December 1, 2012

Abstract

The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between “standard positivism” and “post-Hartian positivism”. Then we will consider various kinds of relations between law and morality that are worth of jurisprudential interest, and will explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should be taken into account, and what kind of such relations are indeed of no import at all. The upshot of this analysis consists in highlighting the distinction between two different dimensions of legal validity (formal validity and material validity respectively), and in pointing out that the positivist separability thesis can apply to formal validity only; on the contrary, when the ascertainment of material validity is at stake, some form of moral reasoning may well be involved (and, here and now, necessarily is involved). The essay concludes with some brief remarks on the persisting importance of the positivist jurisprudential project.

Suggested Citation

Pino, Giorgio, Positivism, Legal Validity, and the Separation of Law and Morals (December 1, 2012). Ratio Juris, 2013 (Forthcoming). Available at SSRN: https://ssrn.com/abstract=2205561 or http://dx.doi.org/10.2139/ssrn.2205561

Giorgio Pino (Contact Author)

University of Palermo - School of Law - Dipartimento di Studi su Politica Diritto e Società ( email )

Piazza Bologni, 8
Palermo, 90134
Italy

HOME PAGE: http://www.unipa.it/gpino

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