Roger A. Shiner

in Norm and Nature

Published in print September 1992 | ISBN: 9780198257196
Published online March 2012 | e-ISBN: 9780191681721 | DOI:

Series: Clarendon Law Series


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This chapter argues for the impossibility of Compatibilism: the general position that positivism and anti-positivism can be made compatible with each other in some stable third or middle-ground theory of law. The ideas of a third theory of law amount to this: we have to suppose a theory which gives the same kind of weight to institutional history as does a positivist theory, although, to avoid the errors of a positivist theory, not to the same degree; and the same kind of weight to the ideals of justice as an anti-positivist theory, although, to avoid the errors of an anti-positivist theory, not to the same degree. The supposition is incoherent, because precisely what distinguishes positivist and anti-positivist theories is not the degree of weight that each gives to the institutional aspects of law, but the kind of weight. To say that ‘the existence of law is one thing, its merit or demerit another’, is to give a kind of weight to the institutional aspect of law, not a degree of weight. Two different kinds of weight cannot be commensurable on the same metric weight.

Keywords: anti-positivism; positivism; legal theory; law

Chapter.  9829 words. 

Subjects: Jurisprudence and Philosophy of Law

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