Chapter

Law and the Common Good

Roger A. Shiner

in Norm and Nature

Published in print September 1992 | ISBN: 9780198257196
Published online March 2012 | e-ISBN: 9780191681721 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198257196.003.0010

Series: Clarendon Law Series

Law and the Common Good

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Sophisticated positivism's complaint about simple positivism was that, by separating law so severely from morality, no proper account could be given of the normativity of law. Sophisticated positivism set itself the task of respecting the Normativity Thesis – explaining how law could be normative – while also respecting the Social Thesis: showing law to be a social fact. The solution proposed was law-as-convention positivism: the thesis that law is a convention, and thus normative in the way that conventions are normative. This chapter argues that the Social Thesis and the Normativity Thesis cannot be reconciled in the way that positivism demands. If both these theses represent valid constraints on a theory of law, then positivism cannot be the correct theory of law. The move towards convention and the common good began within positivism, because of sophisticated positivism's own dissatisfaction with standard positivistic accounts of the normativity of law, and its own ingenuity in the search for alternative accounts. Unlike many arguments for the falsity of positivism, the argument of this chapter begins with premisses promoted by positivism itself.

Keywords: sophisticated positivism; Normativity Thesis; law; legal theory; Social Thesis; conventions

Chapter.  9343 words. 

Subjects: Jurisprudence and Philosophy of Law

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