In Defence of Legal Positivism: Law Without Trimmings

The author is Professor of Legal and Political Philosophy in the University of Cambridge.

Whenever there is a legal rule, the question arises: what makes the legal rule different from other rules? For example how is a rule of cricket different from the legal rule that only the owner of a house (or those who have his permission) can normally enter it? This book explores this question in the context of "morality" whether a legal rule must be moral before it can have the character of a legal rule.

The author distinguishes between different possible meanings of "morality" in this context "whether a law has to be good and not evil for it to be a law" or whether a law has to be in the interest of the common people and not just politicians for it to be a law.

The main argument of the book, in defence of legal positivism, is that a law to be a law can be evil and a law can be purely in the interests of politicians and still be a law? it does not have to be good, and nor does it have to be for the benefit of the people. This is what the author calls the "separability of law and morality": the key argument of legal positivism.

The chapters of the book discuss the arguments of various authors, such as Fuller, Dworkin, Finnis and MacCormick who argue that for a law to be a law it must be morally good. This means that, for example, in India a law to be a law must be Constitutionally valid. And since the Indian Constitution is considered morally good, if a law is Constitutionally valid, then it is morally good.

This book will be extremely useful for students of all Jurisprudence courses in India; especially those who need to study the "Hart-Fuller debate" (discussed in Chapter 3 of the book) and the "Hart-Dworkin debate" (discussed in Chapter 6 of the book), legal academics, teachers of Jurisprudence courses, and libraries. The book is especially relevant for the study of "Analytical Positivism" and the "Introduction" to the Jurisprudence course in the LL.B. programme, as prescribed in the latest UGC Model Curriculum, valid from July 2002.

1.    Unjust Enrichment and Restitution    3
                           2.    Justice as Constancy	21
                           3.    Scrupulousness without Scruples: A Critique of 
                                  Lon Fuller and his Defenders	37
                           4.    Requirements, Reasons, and Raz: Legal Positivism  
                                  and Legal Duties	78
                           5.    The Law in Action: A Study in Good and Evil	113
                           6.    Also among the Prophets: Some Rejoinders to   
                                  Ronald Dworkin's Attacks on Legal Positivism	128

                           7.    Disclaimers and Reassertions	195
                           8.    Elements of a Conceptual Framework	216
                           9.    Law and Order: Some Implications	254
                           
                           Index			309