Article

Exclusive Legal Positivism

Andrei Marmor

in The Oxford Handbook of Jurisprudence and Philosophy of Law

Published in print January 2004 | ISBN: 9780199270972
Published online September 2012 | | DOI: http://dx.doi.org/10.1093/oxfordhb/9780199270972.013.0003

Series: Oxford Handbooks in Law

 Exclusive Legal Positivism

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This article considers some of the conceptual relations between the conventionally identified sources of law and the idea of legal validity. It begins with the discussion of concept of legal validity and legal system. It also presents the idea of inclusive positivism with three versions. There are two main ways in which inclusive positivists can claim that morality bears on what the law is. One type of phenomenon is conditional validity and the other is content validity. This article also briefly considers another version of inclusive positivism. This version maintains that law is basically source based, but it also incorporates those norms that are entailed by source-based law. This article concludes with the argument that the inclusive version of legal positivism, which was meant to form a middle ground between exclusive legal positivism and Dworkin's anti-positivist doctrine, is invalid.

Keywords: legal validity; legal system; conditional validity; inclusive positivism

Article.  11388 words. 

Subjects: Law ; Jurisprudence and Philosophy of Law

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