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The Autonomy of LawEssays on Legal Positivism$
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Robert P. George

Print publication date: 1999

Print ISBN-13: 9780198267904

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198267904.001.0001

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Positivism as Pariah

Positivism as Pariah

(p.30) (p.31) 2 Positivism as Pariah
The Autonomy of Law

Frederick Schauer

Oxford University Press

The purpose of this chapter is to enlighten readers on what legal positivism is, far from the current distorted view, which fits the current American caricature of excessive compliance. The chapter first assumes that morally bad results generated by bad laws or by good laws in the area of their inevitable imprecision are to be avoided. It also assumes that a good way of avoiding bad results is for legal officials, as well as other people involved in the process, to refuse to become instruments of morally bad results. Lastly, the chapter argues that there is reason to be concerned about legal officials who lack the will to exercise moral interposition in performing their tasks. These assumptions are not necessarily true, but the chapter wants to work with the archetype that there is sometimes a problem of excessive official compliance, and that it would be beneficial if this problem could be resolved. The chapter wants to address the view of legal positivism as the cause of or the appropriate name for the willingness of legal officials to suspend moral judgment and enforce bad laws, just because they are the law.

Keywords:   moral interposition, legal officials, moral judgment, excessive compliance

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