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The Separation Thesis and the Limits of Interpretation
(PDF) POSITIVISM AND NATURAL LAW: QUERYING THE SEPARATION | Shankar Narayanan - parentvoice.info
Don't have an account? This chapter analyses Ronald Dworkin's interpretative challenge. One of Dworkin's main arguments against legal positivism is based on the following two premises: first, determining what the law is in each particular instance results from an interpretative reasoning; secondly, that interpretation necessarily involves evaluative considerations. Therefore, the argument concludes, it follows that determining what the law is always depends on evaluative considerations. The chapter focuses on the first premise, examining three possible arguments in support of it: a semantic argument, an epistemic argument, and Dworkin's theory of legal principles. The chapter argues that none of these arguments succeeds.
POSITIVISM AND NATURAL LAW: QUERYING THE SEPARATION
Legal positivism is a philosophy of law that emphasizes the conventional nature of law—that it is socially constructed. According to legal positivism, law is synonymous with positive norms, that is, norms made by the legislator or considered as common law or case law. Legal positivism does not base law on divine commandments, reason, or human rights. As an historical matter, positivism arose in opposition to classical natural law theory , according to which there are necessary moral constraints on the content of law.
Don't have an account? A Hart complained about the ambiguity of legal positivism, and proposed a definition that refers to particular explications of the concept of law, to certain theories of legal interpretation, to particular views on the moral problem of a duty to obey the law, and to a sceptical position with regard to the meta-ethical issue of the possibility of moral knowledge. It is said to be restricted to the Thesis of Separation — the contention that there is no necessary connection between law and morals.