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Kent Greenawalt

Print publication date: 2016

Print ISBN-13: 9780199756162

Published to Oxford Scholarship Online: May 2016

DOI: 10.1093/acprof:oso/9780199756162.001.0001

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Too Thin and Too Rich

Too Thin and Too Rich

Distinguishing Features of Legal Positivism*

Chapter:
(p.114) Chapter 7 Too Thin and Too Rich
Source:
From the Bottom Up
Author(s):

Kent Greenawalt

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199756162.003.0008

“Too Thin and Too Rich: Distinguishing Features of Legal Positivism,” tackles the question of what amounts to legal positivism and whether drawing the line between it and other approaches is very important practically. Legal positivism is a theory that the law of a particular society is separate from moral judgments. Competing theories assert that law and morality are more closely intertwined. Urging both that not all legal judgments can be divorced from moral judgments and that many aspects of positive law are distinguishable from moral assessments, the essay claims that trying to draw a precise line between legal positivism and various competing theories is impossible. Rather than debating the soundness of legal positivism, the focus should be on particular political questions. For example, when existing law provides no clear answer, should judges rely on community morality, their own moral assessment, other legal standards, or a combination of these.

Keywords:   Legal Positivism, Moral Judgments, Community Morality, Legal Criteria, Positive Law

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