Academic

Download of the Week

By Lawrence Solum

The Download of the Week is Positivism and the Inseparability of Law and Morals by Leslie Green.  Here is the abstract:

This is the penultimate draft of a paper originally presented at the Hart-Fuller at 50 conference, held at the NYU Law School in February 2008. A revised version will appear in the NYU Law Review.
The paper seeks to clarify and assess HLA Hart's famous claim that legal positivism somehow involves a `separation of law and morals.' The paper contends that Hart's `separability thesis should not be confused with the `social thesis,' with the `sources thesis,' or with a methodological thesis about jurisprudence. Hart's thesis denies the existence of necessary (conceptual) connections between law and morality. But that thesis is false: there are many necessary connections between law and morality, some of them conceptually significant. Among these is an important negative connection: law is of its nature morally fallible and morally risky. Lon Fuller emphasised the `internal morality of law,' the `morality that makes law possible'. Hart stressed that there is also an immorality that law makes possible. Law's nature is seen not only in its internal virtues, in legality, but also in its internal vices, in legalism.

Highly recommended.  Download it while its hot!

There were many fine papers this week, some others I would particularly recommend include:

Normative Methods for Lawyers by Joseph Singer

Does the Supreme Court's Current Doctrine of Stare Decisis Require Adherence to the Supreme Court's Current Doctrine of Stare Decisis  by Michael Paulsen

Pornography, Coercion, and Copyright Law 2.0 by Ann Bartow

And if I might also recommend my own paper:

Models of Internet Governance by Lawrence Solum.

Full post as published by Legal Theory Blog on May 31, 2008 (boomark / email).