The Demarcation of Law: A Positivist Critique

Legal positivism, a central school of thought in modern jurisprudence, postulates a fundamental demarcation between law as it is and law as it ought to be. This core tenet, often termed the separability thesis, insists on an ontological distinction between the validity of a legal norm and its moral rectitude. Proponents argue that the existence and content of law are determined by social facts, such as its legislative or judicial pedigree, rather than by any inherent moral valence. Consequently, the identification of law is a matter of empirical inquiry into its sources, obviating the need for recourse to contested ethical frameworks. This position seeks to insulate legal analysis from the intractable disagreements endemic to moral philosophy, thereby preserving the autonomy and objectivity of the legal discipline. However, this rigid conceptualization has been subject to considerable internal refinement. The emergence of inclusive, or "soft," positivism represents a significant departure from the stricter "hard" positivist stance, which categorically denies that a law's validity can ever depend on its moral substance. Inclusive positivists contend that while the connection between law and morality is not necessary, it is conceptually possible for a legal system’s rule of recognition—the ultimate criterion for identifying valid laws—to incorporate moral principles. This allowance for the contingent incorporation of morality complicates the initial clarity of the positivist project. Critics from without and within argue that such a concession risks a methodological conflation, blurring the very lines positivism originally sought to draw and reintroducing the subjective normative criteria it was designed to exclude. The debate thus shifts from a simple separation to a more nuanced examination of the conditions under which morality might be permissibly integrated into the formal adjudicative function without undermining the foundational premise of legal positivism itself.

Câu hỏi luyện tập

1. What is the primary function of the second paragraph in relation to the first?

2. What is the term for the core principle of legal positivism that distinguishes between what law is and what it should be?

3. According to the passage, what can be inferred about the 'hard' positivist stance?

4. The text states that identifying law according to positivism is a form of investigation based on observable facts, described as an...

5. In the context of the passage, the word 'pedigree' most nearly means...

6. What is the ultimate standard used to identify valid laws within a particular legal system, according to the text?

7. The primary concern of critics regarding 'inclusive' positivism is that it...

8. Proponents of positivism argue that a law's validity is not determined by any quality the passage refers to as...

9. According to the passage, what does inclusive positivism risk reintroducing into legal analysis?

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