A New Direction in Modern Anglo-American Legal Theory

Abstract

The study examines the genesis of inclusive legal positivism, its key problematic issues, and its place within contemporary Anglo-American legal thought. The subject of the research is the discourse emerged in the second half of the 20th century in the scholarly community of the common law tradition. The discourse revolved around a critical reflection on H.L.A. Hart’s legal philosophy, specifically concerning the relationship between law and morality, within the common methodological framework of modern analytical jurisprudence, which ultimately led to the formation of this school of thought. The methodological foundation of the work is a complex of cognitive methods, including dialectical and historical methods, general logical techniques, as well as the methods of conceptual analysis and comparison. The research posits H.L.A. Hart’s primary opponents, namely R. Dworkin, L.L. Fuller, and J. Finnis, have identified a weakness in his theory regarding its ability to explain the role of legal argumentation in law, as well in applying constitutional legislation and judicial decision-making are often based on legal principles and moral reasoning. It is concluded in an attempt to address these problematic questions, the school of inclusive legal positivism became distinct within contemporary Anglo-American theory, a position first conceptually formulated by W. Waluchow, key representatives of this school also include M. Kramer, K. Himma, J. Coleman, and N. MacCormick. An analysis of leading inclusive positivists’ views allows for the definition of this school of thought, which, in addition to recognizing the formal properties of law, accepts the conceptual possibility of incorporating moral requirements as additional means of maintaining normativity of a legal system. An observation formulated in the course of the research is a distinctive feature of inclusive positivism is its reliance, for justifying its theses, predominantly on the practice of the common law tradition and its appeal to arguments that, in effect, blur the boundaries between different approaches to understanding law. Consequently, the author identifies a number of problematic aspects of this school, including: insufficient connection with legal reality, contextual limitations, and an idealization of social processes within the framework of liberal discourse.