Chapter

Legal Positivism as a Functional Explanation of Law

Kenneth M. Ehrenberg

in The Functions of Law

Published in print March 2016 | ISBN: 9780199677474
Published online May 2016 | e-ISBN: 9780191758355 | DOI: https://dx.doi.org/10.1093/acprof:oso/9780199677474.003.0005
Legal Positivism as a Functional Explanation of Law

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Legal positivism generally views law as a genre of artifact. Hart’s de-emphasis on function is seen as a response to Fuller and Dworkin’s mistakes. The inclusive/exclusive debate is understood as being over the role of law’s function. Little practical difference between the two positions is seen except perhaps in treatment of individuals who deny the validity of certain laws generally in force, although the focus on law’s artifactual nature leans toward the exclusive position. Legal validity is seen as an aspect of law’s institutionality. A spectrum of the six jurisprudential positions is given based on their views about legal validity’s dependence on morality. Comparison is made between seeing the law as a genre of institutionalized artifact and as a species of social planning. It is argued that Searlean institutionality better explains the endurance of law than Scott Shapiro’s notion of plans, and that Shapiro’s notion of self-certification is ad hoc.

Keywords: legal positivism; H.L.A. Hart; inclusive legal positivism; exclusive legal positivism; legal validity; law and morality; social plans; Scott Shapiro

Chapter.  15716 words. 

Subjects: Jurisprudence and Philosophy of Law

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