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Was Inclusive Legal Positivism Founded on a Mistake?
Author(s) -
SHAPIRO SCOTT J.
Publication year - 2009
Publication title -
ratio juris
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.344
H-Index - 10
eISSN - 1467-9337
pISSN - 0952-1917
DOI - 10.1111/j.1467-9337.2009.00428.x
Subject(s) - mistake , legal positivism , principle of legality , positivism , argument (complex analysis) , law , morality , deliberation , institution , legal formalism , legal realism , sociology , law and economics , political science , epistemology , philosophy , legal profession , politics , black letter law , comparative law , private law , biochemistry , chemistry
In this paper, I present a new argument against inclusive legal positivism. As I show, any theory which permits morality to be a condition on legality cannot account for a core feature of legal activity, namely, that it is an activity of social planning. If the aim of a legal institution is to guide the conduct of the community through plans, it would be self‐defeating if the existence of these plans could only be determined through deliberation on the merits. I also argue that, insofar as inclusive legal positivism was developed as a response to Ronald Dworkin's critique of H. L. A. Hart's theory of law, it was founded on a mistake. For once we appreciate the role that planning plays in legal regulation, we will see that Dworkin's objection is based on a flawed conception of legal obligations and rights and hence does not present an objection that inclusive legal positivists were required to answer.