5½ Myths of Legal Non-Positivism

Authors

  • Matthias Klatt University of Graz

DOI:

https://doi.org/10.4454/sdph4y11

Keywords:

legal positivism, legal non-positivism, concept of law, law and morality, Alexy-Raz-debate

Abstract

Many legal philosophers assume that legal non-positivism misconstructs its counterpart, legal positivism; that it destroys law’s positivity by allowing the judges to grab directly into the blue sky of justice; that it disempowers the legislator; that it accepts a bizarre notion of an ideal dimension of the law which is either empty or ideological particularism; that it could not settle the eternal conflict between real and ideal elements; that it transformed a descriptive-analytical debate about what the law is into a normative-political debate about what the law ought to be. The present article unmasks these assumptions as myths.

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Published

2024-09-18

Issue

Vol. 24 No. 1 (2024)

Section

The Jurisprudence of John Gardner and the Fundamentals of Law

License

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