Normative Legal Positivism

Abstract

This chapter makes the case that legal positivism can better be understood as a normative thesis than as a descriptive one. This is an idea that has been presented many times before, including by Lon Fuller and Jeremy Waldron. That is, when its ‘conceptual’ claims are reinterpreted as normative ones—ideals by which legal systems should be structured—then the theory makes far more sense. That is not to say it is correct as a normative theory; legal positivists tend to value certainty and knowability over justice more than most people would find plausible. But by reconstruing the legal positivist doctrines as normative, we can engage in a genuine debate about the ideals that a legal system should pursue, instead of the current situation in which legal positivists present their normative preferences in the forms of necessary conceptual truths.