Positivism as Pariah

Frederick Schauer

in The Autonomy of Law

Published in print June 1999 | ISBN: 9780198267904
Published online March 2012 | e-ISBN: 9780191683404 | DOI:
Positivism as Pariah

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The purpose of this chapter is to enlighten readers on what legal positivism is, far from the current distorted view, which fits the current American caricature of excessive compliance. The chapter first assumes that morally bad results generated by bad laws or by good laws in the area of their inevitable imprecision are to be avoided. It also assumes that a good way of avoiding bad results is for legal officials, as well as other people involved in the process, to refuse to become instruments of morally bad results. Lastly, the chapter argues that there is reason to be concerned about legal officials who lack the will to exercise moral interposition in performing their tasks. These assumptions are not necessarily true, but the chapter wants to work with the archetype that there is sometimes a problem of excessive official compliance, and that it would be beneficial if this problem could be resolved. The chapter wants to address the view of legal positivism as the cause of or the appropriate name for the willingness of legal officials to suspend moral judgment and enforce bad laws, just because they are the law.

Keywords: moral interposition; legal officials; moral judgment; excessive compliance

Chapter.  10297 words. 

Subjects: Jurisprudence and Philosophy of Law

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