Legal Positivism and the Objectivity of Law
2004 (English)In: Analisi e diritto, 253-267 p.Article in journal (Refereed) Published
In this article, I maintain that legal positivism leaves some room for the idea of objectivity in the determination of the law, though not as much as one might think. More specifically, I maintain that on a legal positivist analysis we can attain legal objectivity at the level of the sources of law, though not at the level of interpretation and application of the law. The reason, I argue, is (i) that the identification of the legal raw material at the level of the sources of law is a purely factual matter, whereas the interpretation and application of this raw material often involves moral reasoning; and (ii) that reasoning about factual matters can be, and usually is, objective, whereas it seems that moral reasoning cannot be. This means, inter alia, that I reject the notion – entertained by Joseph Raz, among others – that the so-called strong social thesis applies to the level of interpretation and application of the law as well as to the level of the sources of law.
Place, publisher, year, edition, pages
2004. 253-267 p.
Legal Positivism, morality, statutory intepretation, objectivity of law
Law and Society
IdentifiersURN: urn:nbn:se:uu:diva-81422OAI: oai:DiVA.org:uu-81422DiVA: diva2:109337