Method, Morality and the Impossibility of Legal Positivism
Article first published online: 2 AUG 2007
Volume 9, Issue 3, pages 283–299, September 1996
How to Cite
TODDINGTON, S. (1996), Method, Morality and the Impossibility of Legal Positivism. Ratio Juris, 9: 283–299. doi: 10.1111/j.1467-9337.1996.tb00245.x
- Issue published online: 2 AUG 2007
- Article first published online: 2 AUG 2007
Abstract. The dispute between Legal Positivists (eg, Hart) and Natural Lawyers (e.g., Finnis) concerns the existence or otherwise of a necessary (conceptual) connection between law and morality. Legal Positivists such as Hart deny this connection and assert the merely contingent relationship of law and morals. However, it can be demonstrated that implicit in the valid sociological method of concept formation of post-Austinian Positivists are interpretative or ideal-typical models of the practical rationality of the legal enterprise which are not, and cannot possibly be, value-neutral. With particular attention to the work of John Finnis and his incorporation of Weberian and Aristotelian methodological principles, this paper exposes, if not the truth of Natural Law Theory, the impossibility of Legal Positivism.