Legal Philosophy and Evaluative Considerations

Abstract

<p>This thesis investigates a number of questions of concern to recent legal theorists, especially as regards the points of connection between "positive law" and non-positive elements in the functioning legal system. Competing theoretical perspectives on "law" and the philosophical implications of these are treated as fundamental to understanding current debates in legal philosophy. The view that evaluative judgements must enter legal theory is defended against Hans Kelsen's ambition for a "pure theory of law". Factors significant in the identification of law and, specifically, involved in whether non-positive considerations this is an important controversy that are is explored. A view in which moral arguments sometimes enter into the determination of law is defended against Joseph Raz's "sources thesis" in which law is exhausted by taking account of "authoritative positivist considerations".</p> <p>Issues concerning foundations for legal philosophy are addressed both at the outset of the work and in the final chapter. It is argued that a legal theory that pictures "law" as having institutional sources is preferable to Ronald Dworkin's picture of law as "interpretation". Dworkin's theory of law is considered in various dimensions, and several problems with his approach to legal philosophy are identified.</p>