Article

Inclusive Legal Positivism

Kenneth Einar Himma

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/9780199270972.013.0004

Series: Oxford Handbooks in Law

 Inclusive Legal Positivism

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This article describes some of the most influential criticisms of inclusive positivism. It discusses in detail three commitments: the Social Fact Thesis, the Conventionality Thesis, and the Separability Thesis. The modified version of the Social Fact Thesis explains the validity of first-order norms. the Weak Conventionality Thesis gives a more detailed account of the social fact that explains the authority of the validity criteria. The Strong Conventionality Thesis asserts that officials are obligated to apply the requirements of the rule of recognition in discharging their official functions. The Separability Thesis, foundation of positivism, asserts that law and morality are conceptually distinct. This article presents the historical overview of Incorporation Thesis. Critics of inclusive positivism have developed a number of arguments claiming to show that inclusive legal positivism is conceptually incoherent. Finally, it discusses two components to the Incorporation Thesis, the Necessity Component and the Sufficiency Component.

Keywords: inclusive positivism; Social Fact Thesis; Conventionality Thesis; Separability Thesis; Incorporation Thesis

Article.  21115 words. 

Subjects: Law ; Jurisprudence and Philosophy of Law

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