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- Title
FINAL AUTHORITY TO BIND WITH MORAL MISTAKES: ON THE EXPLANATORY POTENTIAL OF INCLUSIVE LEGAL POSITIVISM.
- Authors
Himma, Kenneth Einar
- Abstract
The article focuses on issues related to the existence of moral criteria in legal systems. While every positivist accepts that there can be legal systems without moral criteria of legality, exclusive and inclusive positivists disagree on whether there can be legal systems with moral criteria of legality. Inclusive positivists accept the Incorporation Thesis, according to which there are conceptually possible legal systems in which the legality criteria "incorporate" substantive moral norms in the following sense--satisfaction of those norms is a necessary or sufficient condition for a proposition to count as law. There are a number of controversial issues regarding the authority courts have to decide various issues of law. Normative theorists, for example, disagree about whether courts in a democratic society should, as a matter of political morality, have final authority to invalid ate a duly promulgated legislative act on the ground that it violates some moral or constitutional principle. While final authority involves having the last word on substantive legal disputes, it is more than that.
- Subjects
LAW; ETHICS; COURTS; AUTHORITY; DEMOCRACY; POLITICAL ethics
- Publication
Law & Philosophy, 2005, Vol 24, Issue 1, p1
- ISSN
0167-5249
- Publication type
Article
- DOI
10.1007/s10982-003-8733-6