Volume 17, Number 1
March 2020
ARTICLE

There Are No Easy Counterexamples to Legal Anti-Positivism

Volume 17, Number 1, March 2020, Pages 1–26
https://doi.org/10.26556/jesp.v17i1.701
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Abstract

Legal anti-positivism is widely believed to be a general theory of law that generates far too many false negatives. If anti-positivism is true, certain rules bearing all the hallmarks of legality are not in fact legal. This impression, fostered by both positivists and anti-positivists, stems from an overly narrow conception of the kinds of moral facts that ground legal facts: roughly, facts about what is morally optimific—morally best or morally justified or morally obligatory given our social practices. A less restrictive view of the kinds of moral properties that ground legality results in a form of anti-positivism that can accommodate any legal rule consistent with positivism, including the alleged counter-examples. This form of “inclusive” anti-positivism is not just invulnerable to extensional challenges from the positivist. It is the only account that withstands extensional objections, while incorporating, on purely conceptual grounds, a large part of the content of morality into law.
Copyright © 2020 Emad H. Atiq
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International license.
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