Modern jurisprudence has typically been presented as a debate between legal positivism and natural law. Though the demise of legal positivism has been touted despite its pre-eminence in past decades, it is clear that there remains a vigorous debate surrounding this theory. It is noteworthy that Hans J. Morgenthau’s legal thought and critique of legal positivism have remained unexplored in the context of this debate. Largely forgotten, his legal thought answers questions that lie at the heart of the natural law (...) and legal positivist debate. It showcases his deeply nuanced understanding of legal and political theory and contains a powerful and insightful commentary on the fundamental problems faced by international law. Building on existing literature, this paper unearths Morgenthau’s critique of legal positivism. It does this by re-examining his works, which address the question of whether moral considerations are relevant to determining the content of the law in force. It brings his legal thought to light, which highlights the artificiality of the division between law and morality and offers a nuanced analysis of problems inherent in international law. Ultimately, the paper challenges the claim that the law can be determined without resorting to moral judgement and shows how Morgenthau’s insights remain relevant to legal positivism and natural law debates today. (shrink)

Natural law theories affirm that it belongs to the nature of law to be apt to promote the common good or do something similar. I defend a weak version of this thesis according to which part of what constitutes something as a nondefective central case of a posited law is that it is apt to promote the common good. Just as the rules of Pictionary require the drawing player to design her drawing to reveal the word in play, the rules (...) of a central case of a legal system require lawmakers to design laws to promote the common good. Therefore, just as a Pictionary drawing that is inapt to reveal the word in play is defective, a central case of a posited law that is inapt to promote the common good is defective. (shrink)