The Scope of Legal Positivism: Validity or Interpretation?

Abstract

The theory of legal positivism has been much discussed over the years, and able writers have defended competing versions of it. These writers disagree not just about details, but about the interpretation of the main tenets of legal positivism: the social thesis, the separation thesis, and the thesis of social efficacy. As a result, there is some uncertainty about the scope of legal positivism. There is, in particular, the question of whether the social thesis applies not only to the level of sources of law, but also to the level of interpretation and application of the law. In this chapter, I am going to argue (A) that legal positivists have reason to conceive of the social thesis as a thesis about sources of law only, (i) because if they do, inclusive legal positivists will not have to assume that legal statements can be true or false in a non-relative way, and exclusive legal positivists will not have to hold that judges create new law as soon as they invoke moral considerations in their reasoning, and (ii) because doing so will undermine Ronald Dworkin’s well-known theoretical disagreement objection. I am also going to argue (B) that legal positivism, conceived along the lines of (A), will still be a significant theory.