Legal Positivism and the Moral Origins of Legal Systems

Canadian Journal of Law & Jurisprudence, Forthcoming

Cornell Legal Studies Research Paper No. 21-41

32 Pages Posted: 7 Dec 2021 Last revised: 15 Feb 2022

See all articles by Emad H. Atiq

Emad H. Atiq

Cornell University - Law School; Cornell University - Sage School of Philosophy

Date Written: November 22, 2021

Abstract

Legal positivists maintain that the legality of a rule is fundamentally determined by social facts. Yet for much of legal history, ordinary officials used legal terminology in ways that seem inconsistent with positivism. Judges regularly cited, analyzed, and predicated their decisions on the ‘laws of justice’ which they claimed had universal legal import. This practice, though well-documented by historians, has received surprisingly little philosophical attention; I argue that it invites explanation from positivists. After taxonomizing the positivist’s explanatory options, I suggest that the most viable option appeals to conceptual change: classical Romans, early modern Europeans, founding-era Americans were not using ‘law’ (or ‘lex’ or ‘jus’) to refer to the subject matter of contemporary legal philosophy. But the strategy is costly. It renders positivism’s truth surprisingly parochial. And it supplies new reasons for doubting positivist accounts of contemporary practices, including the treatment of moral principles in modern adjudication.

Keywords: Conceptual genealogy, Laws of justice, Legal positivism, Natural law, Legal history

Suggested Citation

Atiq, Emad H., Legal Positivism and the Moral Origins of Legal Systems (November 22, 2021). Canadian Journal of Law & Jurisprudence, Forthcoming, Cornell Legal Studies Research Paper No. 21-41, Available at SSRN: https://ssrn.com/abstract=3969405 or http://dx.doi.org/10.2139/ssrn.3969405

Emad H. Atiq (Contact Author)

Cornell University - Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

Cornell University - Sage School of Philosophy ( email )

218 Goldwin Smith Hall
Ithaca, NY 14853-3201
United States

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