Beyond the Separability Thesis: Moral Semantics and the Methodology of Jurisprudence

Posted: 25 Jun 2008

See all articles by Jules L. Coleman

Jules L. Coleman

New York University (NYU); New York University (NYU) - New York University, Abu Dhabi

Date Written: Winter 2007

Abstract

In emphasizing the importance of the separability thesis, legal philosophers have inadequately appreciated other philosophically important ways in which law and morality are or might be connected with one another. In this article, I argue that the separability thesis cannot shoulder the philosophical burdens that it has been asked to bear. I then turn to two issues of greater importance to jurisprudence. These are the moral semantics of law and the normativity of theory construction in jurisprudence. The moral semantics claim is that legal content is best understood as moral directives about what is to be done and who is to decide what is to be done. The problem is that legal positivists typically hold that only social facts contribute to the content of law, and it is hard to see how a positivist can hold both the social-facts claim and the moral-semantics claim. I argue that not only are the two claims consistent with one another, but that legal positivists must hold some version of the moral semantics claim if they are to make sense of the claim that legal reasons purport to be content-independent moral reasons for acting. In of the article, I take up the question of whether theory construction in jurisprudence is normative or descriptive. This is hard to do in part because so little attention has been paid to correctly formulating the issue. I suggest a demanding test for descriptivism; namely, that an adequate analysis of law can be provided entirely in terms of its formal features. I then defend this claim against three arguments designed to show because governance by law is necessarily desirable or valuable that, we cannot characterize law without making reference to those values or to other material features of law. This constitutes a limited but powerful defence of descriptive jurisprudence.

Suggested Citation

Coleman, Jules L., Beyond the Separability Thesis: Moral Semantics and the Methodology of Jurisprudence (Winter 2007). Oxford Journal of Legal Studies, Vol. 27, Issue 4, pp. 581-608, 2007, Available at SSRN: https://ssrn.com/abstract=1151074 or http://dx.doi.org/10.1093/ojls/gqm014

Jules L. Coleman (Contact Author)

New York University (NYU) ( email )

Bobst Library, Room 1240
70 Washington Square South
New York, NY 10012
United States

New York University (NYU) - New York University, Abu Dhabi ( email )

PO Box 129188
Abu Dhabi
United Arab Emirates

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