The Separability Thesis

The Separability Thesis-33
Austin thought the thesis “simple and glaring.” While it is probably the dominant view among analytically inclined philosophers of law, it is also the subject of competing interpretations together with persistent criticisms and misunderstandings.Legal positivism has a long history and a broad influence.

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That is, nobody has ever maintained that legal norms and decisions have no significant bearing on the interests of the people affected by them.

Nor, consequently, has anyone ever maintained that legal norms and decisions are not appropriately subject to moral appraisal. On the other hand, Himma’s critique is forceful insofar as its target—the aforementioned denial—is linked to Raz’s particular conception of authoritativeness.

The English jurist John Austin (1790-1859) formulated it thus: “The existence of law is one thing; its merit and demerit another.

Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.” (1832, p.

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It has antecedents in ancient political philosophy and is discussed, and the term itself introduced, in mediaeval legal and political thought (see Finnis 1996).

The modern doctrine, however, owes little to these forbears.

157) The positivist thesis does not say that law's merits are unintelligible, unimportant, or peripheral to the philosophy of law.

It says that they do not determine whether laws or legal systems .


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