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)

9781009288309, Cambridge University Press

Paperback / softback, published 20 February 2025

92 pages
22.8 x 15.1 x 0.6 cm, 0.16 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]