ONE-SYSTEM INTEGRITY AND THE LEGAL DOMAIN OF MORALITY

Abstract

ABSTRACTAccording to contemporary nonpositivist theories, legal obligations are a subset of our genuine moral obligations. Debates within nonpositivism then turn on how we delimit the legal “domain” of morality. Recently, nonpositivist theories have come under criticism on two grounds. First, that they are underinclusive, because they cannot explain why paradigmatically “legal” obligations are such. Second, that they are overinclusive, because they count as “legal” certain moral obligations that are plainly nonlegal. This paper undertakes both a ground-clearing exercise for and a defense of nonpositivism. It argues, in particular, that Dworkin's claims about the legal domain of morality in his later work are often mischaracterized by critics, because these critics fail to read these claims in light of his earlier theory of “Law as Integrity.” A nonpositivist theory that unifies Dworkin's earlier and later work, I argue, deals with the criticisms leveled at nonpositivist theories better than other nonpositivist competitors.