Chapter

Farewell to ‘Legal Positivism’: The Separation Thesis Unravelling

Klaus Füβer

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/9780198267904.003.0005
Farewell to ‘Legal Positivism’: The Separation Thesis Unravelling

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H. L. A Hart complained about the ambiguity of legal positivism, and proposed a definition that refers to particular explications of the concept of law, to certain theories of legal interpretation, to particular views on the moral problem of a duty to obey the law, and to a sceptical position with regard to the meta-ethical issue of the possibility of moral knowledge. It is said to be restricted to the Thesis of Separation — the contention that there is no necessary connection between law and morals. In this chapter, the Separation Thesis is discussed even further, and has three shortcomings identified: first, that it has been vacillating between object-level contentions about moral qualities of the law; that the precise logical relation between both levels has never been properly accounted for; and that the question of necessary relations between morality and law hinges crucially on the presupposition that the very concept of law itself does not unravel into different sets of convenient stipulations from different epistemological angles, each of which renders the question of such necessary relations trivial. The Separation Thesis is also identified as having two versions: the Fallibility Law and the Neutrality Law.

Keywords: epistemology; Fallibility Law; Neutrality Law; Thesis of Separation; law; morals

Chapter.  17289 words. 

Subjects: Jurisprudence and Philosophy of Law

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