Legal positivism, inclusive versus exclusive

Modern legal positivism views law as a human creation; the existence and content of law are, fundamentally, matters of social fact. This is usually termed ‘the social thesis’. A second thesis integral to the positivist tradition is John Austin’s famous ‘separation thesis’: ‘the existence of law is one thing, its merit or demerit another…’ – there is nothing in the nature of law as a social institution that guarantees its moral worth. Despite a shared commitment to the social and separation theses, defenders of legal positivism differ significantly in their understanding of these fundamental tenets. In response to Ronald Dworkin’s claim that moral principles partly determine the content of legal systems, positivists have divided into two major camps. Inclusive positivists assert that it is conceptually possible, but not necessary, that the legal validity of a norm should depend on its consistency with moral principles or values. Exclusive positivists assert the opposite: the legal validity of a norm can never be a function of its consistency with moral principles or values. Recent debates among positivists have focused on whether inclusive positivism is consistent with the law’s claim to authority and with the role it purports to play in guiding our conduct. Where these debates will lead is, at this stage, an open question.