Legal Positivism and The Moral Aim Thesis

Guest lecture by Assistant Professor David Plunkett, Dartmouth College, USA

Abstract

According to Scott Shapiro’s Moral Aim Thesis, it is an essential feature of the law that it has a moral aim. In short, for Shapiro, this means that the law has the constitutive aim of providing morally good solutions to morally significant social problems in cases where other, less formal ways of guiding the activity of agents won’t work. In this paper, I argue that legal positivists should reject the Moral Aim Thesis. In short, I argue that although there are versions of the Moral Aim Thesis that are compatible with legal positivism, all the different ways of making it compatible face serious philosophical difficulties. Following a discussion of what these difficulties are, I provide an alternative to the Moral Aim Thesis, a thesis that I call the “Represented-as-Moral Thesis”. This thesis avoids the problems that I raise for the Moral Aim Thesis, better resonates with some of the core intuitions behind legal positivism, and still accounts for all of the main evidence that Shapiro cites in favor of the Moral Aim Thesis.