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Morality and the Nature of Law$
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Kenneth Einar Himma

Print publication date: 2019

Print ISBN-13: 9780198723479

Published to Oxford Scholarship Online: April 2019

DOI: 10.1093/oso/9780198723479.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 04 August 2021

Rethinking the Traditional Interpretation of Anti-Positivist Theories

Rethinking the Traditional Interpretation of Anti-Positivist Theories

Classical Natural Law Theory and Dworkinian Interpretivism

Chapter:
(p.29) 2 Rethinking the Traditional Interpretation of Anti-Positivist Theories
Source:
Morality and the Nature of Law
Author(s):

Kenneth Einar Himma

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198723479.003.0003

This chapter challenges the traditional interpretation of classical natural law theories and Dworkinian interpretivism. It argues that these theories are best construed as explicating a different concept of law than the one positivism seeks to explicate. The concept that positivism seeks to explicate is a purely descriptive concept that applies to any norm that has been recognized, applied, or enforced in something that counts as a legal system. In contrast, the concept that classical natural law theories and interpretivism seek to explicate is more aptly construed as grounded in the descriptive concept that positivism seeks to explicate but also has evaluative content that applies only to valid norms that can be characterized as law “in the fullest sense.” Thus construed, these theories complement rather than rival positivism and are hence misleadingly characterized as “anti-positivist.”

Keywords:   classical natural law theories, Dworkinian interpretivism, positivism, anti-positivism, descriptive concept

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