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20 - What Is Law and What Counts as Law? The Separation Thesis in Context

from Part IV - Main Tenets

Published online by Cambridge University Press:  21 January 2021

By
Andrei Marmor
Edited by
Torben Spaak  and
Patricia Mindus
Torben Spaak
Affiliation:
Stockholms Universitet
Patricia Mindus
Affiliation:
Uppsala Universitet, Sweden
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Summary

Marmor considers the separation thesis, which he understands as saying that whether a given norm is legally valid depends on its sources, not its merits; and this means that he is concerned with the separation thesis conceived as a thesis about legal status, not as a thesis about the content of legal statements. Observing that the distinction between sources and merits is very close to the distinction between is and ought, he considers the objection that the separation thesis cannot be upheld because one cannot clearly distinguish between sources and merits, between is and ought. He responds to this objection, however, that the separation thesis can be upheld if it is seen as an answer to the question ‘What counts as law?’ rather than to the question ‘What is law?’, and that this response is in keeping with a common wish on the part of legal positivists to provide a reductive explanation of legal validity, that is, an explanation of legal validity exclusively in terms of social facts.

Keywords

separation thesislaw interpretationlegal validityRonald DworkinH. L. A. Hart
Type
Chapter
Information
The Cambridge Companion to Legal Positivism , pp. 465 - 486
Publisher: Cambridge University Press
Print publication year: 2021

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References

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