Is legal positivism tenable beyond moral relativism?

In one of the most recent articles on the relation between law and morality, Alexy claims that the central argument against any of the strands of legal non-positivism rests on the argument from moral relativism, famously advanced by Kelsen. This argument rejects the 'existence thesis', that is, it denies the existence of objective moral elements. If this argument stands, contends Alexy, 'then positivism prevails.' This paper will not dwell upon the question under what conditions, if any, legal positivism prevails over non-positivism. Instead, it will investigate whether the argument from relativism is not only central for refuting legal non-positivism, but is also of the key importance for grounding a tenable positivist theory. In doing so, it will proceed from the core thesis of legal positivism, which is, despite other disagreements, common for all authors covered by this theoretical label. This is the 'separation thesis', which states that legality of a norm is neither necessarily, nor conceptually dependent upon being in accordance with certain assumed moral standard. The tenability of a theory in the positivist tradition will be, more specifically, tested in light of the comparison of legal theories of Kelsen and Hart, who were both moral relativists. However, while Kelsen openly grounds his Pure Theory of Law in moral relativism, Hart's theory incorporates the teaching on 'natural necessity', which signifies the introduction of a 'thin' version of moral realism in the purportedly positivist account of law. If this paper succeeds in showing on Hart's case that even the slightest departure from moral relativism is detrimental for the sustainability of the 'separation thesis', then it will be assumed that this meta-ethical stance is in some important respects central for the grounding of a tenable theory in the positivist tradition. This conclusion would, consequently, have profound effects on the sustainability of all the positivist theories that directly or indirectly incorporate Alexy's 'existence thesis'. Moreover, if this analysis is correct, an alternative approach to the subject matter would imply no less than restating the terms of the traditional jurisprudential debate as to argue that classifying theories of law under different labels does not matter at all and/or that the 'separation thesis' is not definitional of a theory in the positivist tradition.

Bibliographic Details

Main Author:	Jovanović,Miodrag
Format:	Digital revista
Language:	English
Published:	Universidad Nacional Autónoma de México, Instituto de Investigaciones Jurídicas 2015
Online Access:	http://www.scielo.org.mx/scielo.php?script=sci_arttext&pid=S2007-43872015000100006
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