Legal Positvism (was RE: RE: Justice Scalia and First Things)

[Patrick Wiseman]

On Thu, 9 Mar 2006 at 1:51pm, Franck, Matthew J wrote:

:Sandy believes that slavery was wrong and that it ought not to have been
:the law of the land.  Therefore I take him not to be a legal positivist,
:unless I have spent the last quarter century misconstruing what that
:expression means.

I've always understood it to mean, a la Hart, to be the position that
there is no _essential_ relationship between the content of positive law
and morality, not that a legal positivist is precluded from giving a moral
critique of the law.  Indeed, it was Hart's revulsion with the German
leagl system which led him to the view that morality and law were
distinct, precisely so that he _could_ give a moral critique of a legal
system.  Were they not distinct, in Hart's sense, law would be
definitionally moral.

Patrick
-- 
Patrick Wiseman
Professor of Law
GSU College of Law