Rethinking the Traditional Interpretation of Anti-Positivist Theories

Abstract

This chapter challenges the traditional interpretation of classical natural law theories and Dworkinian interpretivism. It argues that these theories are best construed as explicating a different concept of law than the one positivism seeks to explicate. The concept that positivism seeks to explicate is a purely descriptive concept that applies to any norm that has been recognized, applied, or enforced in something that counts as a legal system. In contrast, the concept that classical natural law theories and interpretivism seek to explicate is more aptly construed as grounded in the descriptive concept that positivism seeks to explicate but also has evaluative content that applies only to valid norms that can be characterized as law “in the fullest sense.” Thus construed, these theories complement rather than rival positivism and are hence misleadingly characterized as “anti-positivist.”