Chapter

Too Thin and Too Rich: Distinguishing Features of Legal Positivism

Kent Greenawalt

in The Autonomy of Law

Published in print June 1999 | ISBN: 9780198267904
Published online March 2012 | e-ISBN: 9780191683404 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198267904.003.0001
Too Thin and Too Rich: Distinguishing Features of Legal Positivism

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As the saying goes, one can never be too thin or too rich. This chapter suggests that the division between plausible modern legal positivism and plausible competing views has become too thin to have great significance. It has also been argued that distinguishing legal positivism from other theories or views of law is an exercise more illuminating for an outsider than from the standpoint of the participant who is determining what the law provides. The chapter gives an impressionistic explanation of the features of legal positivism. Legal positivism is discussed vis-à-vis traditional law, more-legal conventionalism, weak natural law, and other various critical legal approaches. The second part of the chapter asks important questions related to legal positivism, like ‘is there a necessary connection between law and morality?’ and ‘is an unjust or immoral law truly a law?,’ among many others. Finally, the distinction between the outsider-observer's perspective and that of an insider-participant is described, and the chapter explains why legal positivism may serve the former better.

Keywords: legal positivism; law; morality; critical legal approaches; traditional law; justice; natural law

Chapter.  11637 words. 

Subjects: Jurisprudence and Philosophy of Law

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