| Special Workshop Title: | Legal Positivism after Hart and Dworkin |
| Author: | Jules Coleman |
| Paper Title: | Separability Thesis |
| Abstract: | Most people associate legal positivism with the claim that there is no necessary connection between law and morality. I labeled this the ‘separability thesis’. Quite apart from the various, often mistaken ways of formulating the claims the separability thesis makes – some of which I am unfortunately responsible for myself – there are two problems with identifying legal positivism with it. On a familiar formulation of the separability thesis – that morality need not be a condition of legality --- there is no one of any significance in contemporary jurisprudence who seriously rejects it. So how can the separability thesis characterize legal positivism when no one rejects the separability thesis so conceived. On the other hand, on another familiar formulation of the separability thesis – that law cannot necessarily possess moral attributes or value – it is obviously false, and no positivist must be committed to thinking otherwise. For me, rather than identifying the core of legal positivism, the separability thesis is a mere distraction. I offer a better way of thinking about the core commitments of legal positivism. |
This page was last updated on: 2003-05-04.