Farewell to the Exclusive-Inclusive Debate
Posted: 29 Feb 2008
Date Written: 2005
In recent years there has an ongoing debate between two versions of legal positivism. According to one, called exclusive positivism, whenever the law refers to morality, the law necessarily directs its subjects to an external, non-legal, standard, because there is a conceptual impossibility in incorporating moral standards into the law. According to the rival inclusive positivist position, such incorporation is possible, and therefore moral standards can be (although they need not be) part of the law. In this article I argue that both views are mistaken since they both assume that whenever words like `equality`, `justice` etc. appear in the law they refer to moral standards. Rather, I argue, these words refer to legal standards, which are different from the moral standards. As a result the question of the possibility of incorporation can be avoided, and the debate between exclusive and inclusive positivists put to rest.
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