Acceso usuarios
Patricia Mindus
Inclusive legal positivism has been in the limelight for some time. There are several reasons for this. Among the structural reasons for this general change of direction within general jurisprudence are cultural changes such as the renewed interest in theory of action or normative methodology. This paper discusses José Juan Moreso's contribution to this debate. The paper focuses especially on the thesis that there would be no connection between non-cognitivism as set out in meta-ethics and positivism in legal theory. This thesis is really the outcome of a compound of different positions: on the political level, the question concerns the possible relationships and tensions between democracy and liberalism. On the ethical and foremost meta-ethical level, the issue basically revolves around the relationship between cognitivism and expressivism; and, on the level of legal theory, Moreso attempts to resolve the problem which, a century ago, Benedetto Croce compared to the difficulty of sailing around Cape Horn, i. e. of connecting law with ethics. The paper is divided into five sections. In the first section, a few historical remarks are made. In section two, I look at how natural law is defined in Moreso. In section three, some observations are made on how legal positivism is qualified in relation to natural law. In section four, I suggest a possible criticism of the conception of moral relativism used by Moreso and recommend an alternative conception that hopefully grasps further features of the way the problem is frequently discussed. Finally, some methodological remarks are made: the choice of disregarding the distinction between authentic and inauthentic normative propositions leads Moreso to conceive the object of dispute between cognitivists and expressivists in an unfruitful way. The lack of distinction between the role played by belief, on the one hand, and conative attitudes, on the other, makes it hard, if not impossible, to grasp what exactly the object of this dispute is. In fact, instead of representing a fertile scientific dialogue, their opposition begins to resemble a situation where people are talking pass each other. If this outcome is to be avoided and the two positions reconstructed properly, an account of what constitutes belief should complement the theory. Probably greater focus is also needed on what is considered to be the primary function of normative propositions.
