The Problem of Morality in Soft and Hard Legal Positivism

Salehi, Ataollah; Balavi, Mahdi

doi:10.22034/jpiut.2023.59000.3627

Document Type : Research Paper

Authors

Ataollah Salehi ¹
Mahdi Balavi ²

¹ Assistant Professor of Law Department, Shahid Bahonar University of Kerman, Iran

² Associate Professor of Law Department, University of Tehran, Iran

https://doi.org/10.22034/jpiut.2023.59000.3627

Abstract

The law is the reason and guide for human behavior; therefore, it is a normative social practice. But what conditions should a norm have to be called a law and what is its relationship with morality? Is the criterion of being a law, its origin or its content? In response, the school of natural law and legal positivism are two long-standing competing theories. The school of natural law, which is a recommendatory and prescriptive, emphasizes the content, but the positivism, which is descriptive and explanatory, emphasizes the source of the law. Of course, at first, the school of natural law looked for content in religion, but today, individual human rights as the subject and social contract as the process has noticed. The conceptual space of legal positivism is formed by the combination of two theses of social reality and separability, and the separation theory denies any conceptual and content relationship between law and morality. but, Dworkin, by criticizing the separation theory, divided positivism into two opposing camps, soft and hard, and the soft positivism abandoned the separation theory to some extent. But is soft legal positivism compatible with the claim of the authority of the law and its guiding function? Is discovered or invented morality an essential and existential part of the law or is it a criterion for its evaluation? In this article, the mentioned questions are analyzed in order to discover the position of hard and soft legal positivism.

Keywords

Main Subjects

philosophy

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Journal of Philosophical Investigations

The Problem of Morality in Soft and Hard Legal Positivism

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Volume 17, Issue 44 - Serial Number 44
articles
Volume 17, Issue 44 (Autumn 2023)
November 2023
Pages 488-506

The Problem of Morality in Soft and Hard Legal Positivism

References

References

Send comment about this article

Volume 17, Issue 44 - Serial Number 44 articles Volume 17, Issue 44 (Autumn 2023)November 2023Pages 488-506

Volume 17, Issue 44 - Serial Number 44
articles
Volume 17, Issue 44 (Autumn 2023)
November 2023
Pages 488-506