'Dworkinian Positivism'

Felipe Jimenez (University of Southern California)

ABSTRACT. According to the one-system view, law is a branch of political morality. This paper assumes this claim as true and interrogates its implications for the concept of law that legal participants ought to adopt. As I argue, there is a relatively direct path from the one-system view to an argument that prescribes the positivist concept of law on normative grounds. Even if jurisprudential questions ultimately depend on moral considerations, the latter might still weigh in favor of a version of positivism. The positivist view, I will argue, is more consistent with reasonable disagreement and democratic authority than non-positivist views, and it offers a clearer view of the situations under which law should be resisted and reformed. Positivism is also more consistent with Dworkinian integrity than nonpositivism. We ought to adopt the positivist concept of law, precisely because of the moral considerations that the one-system view sees as continuous with legal theory.