Legal Positivism and the Moral Origins of Legal Systems

Download Edit this record How to cite View on PhilPapers
Abstract
Legal positivists maintain that the legality of a rule is fundamentally determined by social facts. Yet for much of legal history, ordinary officials used legal terminology in ways that seem inconsistent with positivism. Judges regularly cited, analyzed, and predicated their decisions on the ‘laws of justice’ which they claimed had universal legal import. This practice, though well-documented by historians, has received surprisingly little philosophical attention; I argue that it invites explanation from positivists. After taxonomizing the positivist’s explanatory options, I suggest that the most viable option appeals to conceptual change: classical Romans, early modern Europeans, founding-era Americans were not using ‘law’ (or ‘lex’ or ‘jus’) to refer to the subject matter of contemporary legal philosophy. But the strategy is costly. It renders positivism’s truth surprisingly parochial. And it supplies new reasons for doubting positivist accounts of contemporary practices, including the treatment of moral principles in modern adjudication.
PhilPapers/Archive ID
ATILPA
Upload history
First archival date: 2021-11-20
Latest version: 3 (2021-11-28)
View other versions
Added to PP index
2021-11-20

Total views
42 ( #58,186 of 64,228 )

Recent downloads (6 months)
42 ( #18,546 of 64,228 )

How can I increase my downloads?

Downloads since first upload
This graph includes both downloads from PhilArchive and clicks on external links on PhilPapers.