Title: Legal Positivism: Seeking for an Identity;
When: October, 3rd; 5:15 PM;
Where: room 110, ul. Bracka 12 (Larisch Building)
This paper aims to investigate legal positivism as a theory about the concept of law. Therefore the first point to clarify is what legal positivists mean by “concept” and how they propose to inquire it. But here problems begin. Legal positivists do not agree about the object of their theoretical task, nor about the nature of their inquires on law.
Beyond this fundamental disagreement, many other controversies open up. So, e.g., legal positivists disagree about the concept of legal norm, about the role of coercion within law and about the nature and role of legal interpretation.
So, what does identify legal positivism as a theory about the concept of law? Which ideas one has to adhere to in order to be considered as a legal positivist? Legal positivists have got two answers: the social source thesis and the thesis of the separation (or separability) between law and moral.
In this essay I will try to show that the social source thesis is nothing but a partial and positive version of the separation (or separability) thesis, and that the separation (or separability) thesis is not perspicuous enough to identify legal positivism as a single, well-defined, theoretical position and, therefore, it cannot distinguish legal positivism from other theories of law.