Liam Murphy, Professor of Law, New York University
The Munro Lectureship Fund and The Lane Center
So we don’t seem to have progressed very far from the description in Chapter Two of positivism and nonpositivism as two different fundamental understandings of the kind of thing law is. Positivists see law as a complex normative system that is grounded entirely in matters of fact. Law isn’t just what any particular person in power does. There are right and wrong answers to many if not most legal questions, and you have to be an expert on the system’s rules and principles and their proper interpretation to know what the law about any particular issue is. But this entire system is nonetheless grounded in social fact, in the attitudes and beliefs of those with de facto authority within the system. The content of the law is always finally determined by facts, by what is, and not by moral considerations, or what ought to be. As a result, it will always remain an open question whether legal rights and duties are real, that is moral, rights and duties, and whether the system as a whole deserves our allegiance, all things considered.
Liam Murphy is a Professor of Law at New York University.