Common law positivism through civil law eyes

• Autor(a) principal: Chiassoni, Pierluigi
• Data de Publicação: 2020
• Tipo de documento: Artigo
• Idioma: eng
• Título da fonte: Repositório Científico de Acesso Aberto de Portugal (Repositórios Cientìficos)
• Texto Completo: http://hdl.handle.net/10451/61840
• topic: Direito civil

The paper purports to argue for two theses: 1. common law theories of legal positivism take “the separation thesis” as encompassing both meta- theoretical and theoretical claims, while civil law theories of legal positivism take it as dwelling entirely on a meta-theoretical level; 2. common law theories of legal positivism, in arguing for the theoretical separation between law and morals also as a riposte to Dworkin’s critiques, have made a claim concerning the limits of the law that is at odds with the separation thesis as a meta-theoretical claim. The paper proceeds in two steps. The first step argues for the first thesis by providing a brief comparative account of common law and civil law theories of legal positivism, as instanced by Herbert Hart and Norberto Bobbio, respectively. The second step argues for the second thesis by analysing the Hartian, inclusivist and exclusivist varieties of legal positivism from the standpoint of their way of solving the law and morality puzzle.