PL EN


2010 | 2(184) | 5-36
Article title

Positivism Buried Alive? In Defence of Inclusive Legal Positivism

Authors
Title variants
Languages of publication
PL
Abstracts
EN
The efforts taken by the "soft" (inclusive) positivists (H.L.A. Hart's followers, ie. J. Coleman, W. Waluchow, M. Kramer, K. E. Himma) to defend the legal positivist position (the separability thesis, the social sources thesis) are combined with theoretical references to the moral arguments which are present in judicial practice. Therefore, the inclusive positivists treat the relationship between law and morality as a contingent relationship and try to justify it on the basis of the system’s overriding rule of recognition. This position, as an attempt to find the "golden mean" in theory of law, is criticized both by non-positivists and "hard" positivists. For instance, R. Dworkin or L. Morawski claim that, despite its declarations, soft positivism actually does not respond to the requirements of modern legal practice and is a "degenerated" and stagnant research program. On the other hand, J. Raz contends that due to the incorporation of morality, soft positivism is no longer a real positivism. The article presents a defense of soft positivism, especially against its non-positivistic critics, as well as a version of soft positivism, which can be called a "constructive" one (V. Villa). It also shows that soft positivism, as being consistent with the "spirit" of positivism and complying with the requirements of the present judicial practice, may be justified by reference to postmodern thinking.
Year
Issue
Pages
5-36
Physical description
Contributors
author
  • Uniwersytet Jagielloński, ul Gołębia 24 31-007 Kraków
References
Document Type
Publication order reference
Identifiers
YADDA identifier
bwmeta1.element.cejsh-becd88fe-4764-450c-aa23-116151e847b1
JavaScript is turned off in your web browser. Turn it on to take full advantage of this site, then refresh the page.