Contemporary Non-Positivism

An original defence and articulation of law's dependence on morality that illuminates the origins and development of legal systems.

Emad H. Atiq (Author)

9781009539128, Cambridge University Press

Hardback, published 20 February 2025

92 pages
23.5 x 16 x 1.2 cm, 0.275 kg

This Element defends and clarifies the thesis that the legality of a system of rules depends on its moral features. Positivists who deny this dependence struggle to explain: (1) the traditional classification of moral norms as a form of a priori law; (2) judicial reliance on moral norms in legal discovery; (3) persistent theoretical disagreement about intra-systemic, law-determining facts; (4) why radically arbitrary or immoral schemes of social organization represent borderline cases of law; and (5) why law, like other artifacts, can be evaluated in a kind-relative sense (“as law”). Meanwhile, traditional versions of non-positivism overstate the dependence going further than the desiderata warrant. A moderate theory is formulated: law is an artifact whose existence depends on adequately performing an essentially normative function. The theory's justification lies in its explanatory power: a comparison with other “value-driven” artifacts, such as artworks, proves vital for understanding legal language, reasoning, and practice.

1. Introduction: subject matter and methodology
2. The argument against positivism
3. How to be a legal non-positivist
4. Outstanding questions
References.

Subject Areas: Jurisprudence & philosophy of law [LAB]