Pruning Gardner's Positivism

Pruning Gardner's Positivism, pp. 69-81, Der Jurist 2011

8 Pages Posted: 23 Oct 2011 Last revised: 24 Oct 2011

Date Written: October 22, 2011

Abstract

This article undertakes the challenge of critically analysing what is arguably the pre-eminent modern articulation of the doctrine of legal positivism: that presented by Professor John Gardner in “Legal Positivism: 5½ Myths.” Gardner reduces this doctrine down to a core thesis about the nature of legal validity. In essence, this thesis is that the legal validity of norms, and hence whether those norms form part of a legal system, does not depend upon the merits of those norms or the merits of the sources of those norms. The substance of this article considers the utility of this thesis in two different senses. First, it considers whether Gardner’s thesis constitutes a useful discriminatory tool for legal philosophy. Second, it considers the utility of Gardner's thesis in the context of jurisprudential debate. The critical analysis aimed at answering these questions yields a variety of insights about the thesis itself and jurisprudential debate more generally. It is tentatively suggested that these insights might ultimately prove to be new vistas from which we can consider legal philosophy and the purpose of jurisprudential debate anew.

Keywords: Legal Philosophy, Legal Positivism, John Gardner

Suggested Citation

O'Beirne, Brian H., Pruning Gardner's Positivism (October 22, 2011). Pruning Gardner's Positivism, pp. 69-81, Der Jurist 2011, Available at SSRN: https://ssrn.com/abstract=1947894

Brian H. O'Beirne (Contact Author)

Trinity College Dublin ( email )

2-3 College Green
Dublin, D2
Ireland
0872165153 (Phone)

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