Abstract There has been a recent turn toward a new form of nonpositivism in Anglo-American jurisprudence. This paper focuses on the theories articulated by Mark Greenberg and Scott Hershovitz (I label their views as the “New Legal Anti-Positivism” or NLAP). NLAP argues that questions about legal rights and obligations are moral questions; that legal reasoning is a form of moral reasoning; and that there is no domain of legal normativity that stands independently of moral considerations. This paper doesn’t offer a decisive argument against NLAP. Instead, it argues that NLAP is distinctively American: it relies on certain aspects of American legal practice that are not representative of other legal systems. To the extent that general jurisprudence attempts to offer a relatively general theory of law, theories that can accommodate variations across legal cultures are better than those that cannot. This is a relevant consideration against NLAP.
Felipe Jiménez (Thu,) studied this question.