Date of Award
1-1-2024
Document Type
Thesis
Degree Name
M.A. in Philosophy
First Advisor
Aaron M. Graham
Second Advisor
Steven C. Skultety
Third Advisor
Donovan Wishon
Relational Format
dissertation/thesis
Abstract
One of the most influential views associated with legal positivism is that of the separability thesis. Primarily associated with H.L.A Hart, this thesis is widely understood to be the view that there is no necessary connection between law and morality. However, John Gardner takes this to be a naïve interpretation of separability that fails to adequately characterize legal positivism and which Hart himself did not endorse. Instead, Hart and other legal positivists were committed to the view that whether a norm is legally valid depends on its sources (i.e., social facts such as official engagement with the norm) and not its merits.
Granting Gardner’s articulation of the separability thesis to be the fundamental thesis of legal positivism and assuming it to be true, this paper evaluates whether legal positivism is an adequate theory for understanding legal validity. It argues against Gardner that the thesis is not revelatory as to whether the legal validity of any norm is in virtue of its sources and not its merits. Subsequently, it develops a strategy for arguing against the separability thesis by identifying as counterexamples certain norms whose legal validity is independent of their sources. These norms include norms of deontic logic, which Gardner accepts are valid on their merits, as well as epistemic norms. A key feature of these norms is that they are necessary truths or universally valid, which should make them necessarily legally valid rather than disqualify them from possessing legal validity. The paper concludes that the separability thesis should be rejected unless positivists can independently justify why such norms cannot be legally valid or reformulate the thesis to accommodate necessarily legally valid norms.
Recommended Citation
Vali, Nichalus Zoltan, "An Argument Against Positivist Separability" (2024). Electronic Theses and Dissertations. 2889.
https://egrove.olemiss.edu/etd/2889