Raz’s Exclusive Positivism and Judges’ Ability to Make Law: Where Are the Limits?

• November 23rd, 2021
• in Uncategorized

By: Natalie Guarino, Georgetown University

All legal positivists believe that law’s existence is a result of social facts, not normative value. Within legal positivism, there is a split between inclusive and exclusive positivists. According to inclusive positivists, although law’s existence does not depend on its merits, law can include moral principles. According to exclusive positivists, it is not possible to incorporate moral principles into law. Joseph Raz, one of the twentieth century’s most influential legal philosophers, is an exclusive positivist who believes that the content of law can be understood solely through social facts, not moral principles. [1] In effect, he believes that law cannot include dictates like ‘do what is fair’ or ‘do what is just.’ Raz’s argument for exclusive positivism relies on multiple theses and justifications. This post critiques Raz’s assertion that judges are able to make law by relying on moral considerations without incorporating those moral considerations into law.