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Philosophy of LawCollected Essays Volume IV$
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John Finnis

Print publication date: 2011

Print ISBN-13: 9780199580088

Published to Oxford Scholarship Online: September 2011

DOI: 10.1093/acprof:oso/9780199580088.001.0001

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The Truth in Legal Positivism

The Truth in Legal Positivism

Chapter:
(p.174) 7 The Truth in Legal Positivism
Source:
Philosophy of Law
Author(s):

John Finnis

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199580088.003.0008

This chapter begins with a detailed history of the emergence of the term ‘positive’, in relation to law, in the 12th and 13th centuries, most richly and subtly in Aquinas, whose texts are described and analysed in detail. A concluding purely theoretical section sets out, illustratively, the basic reasons why the alleged debate between ‘natural law theory’ and ‘legal positivism’ is misplaced and futile, through inattention to ambiguities which, once noticed, enable it to simply dissolve. Though human law is largely artefact and artifice, not a conclusion from moral premises, neither its positing nor the recognition of its positivity can be understood without reference to the moral principles that ground and confirm its authority or challenge its pretention.

Keywords:   positive law, Aquinas, natural law theory, positivism, moral principles

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