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The Province of Jurisprudence Democratized$
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Allan C. Hutchinson

Print publication date: 2008

Print ISBN-13: 9780195343250

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780195343250.001.0001

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The Morality of Jurisprudence Determined

The Morality of Jurisprudence Determined

Chapter:
(p.65) Chapter Four The Morality of Jurisprudence Determined
Source:
The Province of Jurisprudence Democratized
Author(s):

Allan C. Hutchinson

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195343250.003.0004

This chapter explores the link between law and morality. It considers the positivist and moralist accounts of jurisprudence, and contends that the best arguments put forward to defend the validity, relevance, and justification for a positivist account of jurisprudence are unconvincing. Apart from the assertion that it is possible for there to be a bad legal system (to which almost all jurists, moralist and positivist, can accede), legal positivism has little to offer. However, the moralist case is also of limited constructive worth when viewed from a democratic perspective; while it insists that there is an inescapable moral dimension to determining law's validity, it seeks to avoid and contain the subversive implications of that powerful insight. The chapter looks at three different responses—soft/inclusive, hard/exclusive, and ethical positivism—and assesses their merits from a democratically leaning political alternative account of jurisprudence.

Keywords:   positivism, moralism, analytical jurisprudence, legal theory, separation thesis

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