The Possibility of Naturalistic Jurisprudence: Legal Positivism and Natural Law Theory Revisited
Revus: Journal for Constitutional Theory and Philosophy of Law, Forthcoming
26 Pages Posted: 21 Sep 2017
Date Written: June 7, 2017
Contemporary legal philosophy is predominantly anti-naturalistic. This is true of natural law theory, but also, more surprisingly, of legal positivism. Several prominent legal philosophers have in fact argued that the kind of questions that legal philosophers are interested in cannot be naturalized, such that a naturalistic legal philosophy is something of a contradiction in terms. Against the dominant view I argue that there are arguable naturalistic versions of both legal positivism and natural law. Much of the essay is dedicated to showing that such views are possible: I identify naturalistic versions of a “natural law” view, a “positivist” view, as well as a “semi positivist” view, all of which are variants of the familiar (anti-naturalistic) views defended under these labels. I also offer a tentative argument in support of a naturalistic positivist view, one that has more in common with the views of Thomas Hobbes and Jeremy Bentham than with the anti-naturalistic positivist views popular these days.
Keywords: naturalism, naturalistic jurisprudence, legal positivism, natural law, moral psychology
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