John Gardner on the Scope of Legal Positivism

Abstract

In Legal Positivism: 5½ Myths, John Gardner argued that legal positivism should be understood only as a thesis about the validity of individual norms. This influential view has had the effect of discounting and marginalizing two other important questions about the separation or non-separation of law and morality: regarding the legal status of significantly immoral legal systems, and regarding the role of moral evaluation in the construction of theories about the nature of law. More importantly, there is far less attention now paid than there should be to the interesting theoretical question of the extent to which a position in favor of separation (or non-separation) on one topic entails, or at least strongly supports, a similar view on the other topics.

Keywords: John Gardner, Legal Positivism, Legal Validity, H.L.A. Hart, theories of law