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Book Synopsis
This Element defends and clarifies the thesis that the legality of a system of rules depends on its moral features. Positivists who deny this dependence struggle to explain: (1) the traditional classification of moral norms as a form of a priori law; (2) judicial reliance on moral norms in legal discovery; (3) persistent theoretical disagreement about intra-systemic, law-determining facts; (4) why radically arbitrary or immoral schemes of social organization represent borderline cases of law; and (5) why law, like other artifacts, can be evaluated in a kind-relative sense (?as law?). Meanwhile, traditional versions of non-positivism overstate the dependence going further than the desiderata warrant. A moderate theory is formulated: law is an artifact whose existence depends on adequately performing an essentially normative function. The theory''s justification lies in its explanatory power: a comparison with other ?value-driven? artifacts, such as artworks, proves vital for understanding legal language, reasoning, and practice.

Contemporary NonPositivism

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    A Paperback by Emad H. Atiq

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      Book details

      Publisher Cambridge University Press
      Published 4/30/2025
      ISBN-13 9781009288309
      978-1009288309
      ISBN-10 100928830X
      Also in:
      Philosophy: metaphysics and ontology

      Description

      Book Synopsis
      This Element defends and clarifies the thesis that the legality of a system of rules depends on its moral features. Positivists who deny this dependence struggle to explain: (1) the traditional classification of moral norms as a form of a priori law; (2) judicial reliance on moral norms in legal discovery; (3) persistent theoretical disagreement about intra-systemic, law-determining facts; (4) why radically arbitrary or immoral schemes of social organization represent borderline cases of law; and (5) why law, like other artifacts, can be evaluated in a kind-relative sense (?as law?). Meanwhile, traditional versions of non-positivism overstate the dependence going further than the desiderata warrant. A moderate theory is formulated: law is an artifact whose existence depends on adequately performing an essentially normative function. The theory''s justification lies in its explanatory power: a comparison with other ?value-driven? artifacts, such as artworks, proves vital for understanding legal language, reasoning, and practice.

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