Abstract

GARCIA BERGER, Mario. An Analysis of the Dispute between Exclusive and Inclusive Legal Positivism from a Neokantian-Kelsenian Perspective. Isonomía [online]. 2015, n.43, pp.77-96. ISSN 1405-0218.

The core purpose of this paper is to show that the exclusive-inclusive legal positivism debate is based on at least three erroneous ideas about the relation between legal and moral language, the relations between legal theory and legal practice, and the understanding of what a normative science is. Then, assuming the Neokantian-Kelsenian conception of jurisprudence, I propose the thesis that the legal language and the theory of law are, respectively, the conceptual foundations of moral language and legal practice. I also reject the idea that normative sciences embrace value-judgments. As a consequence, the debate between inclusive and exclusive legal positivism must be abandoned or, at the least, recasted.

Keywords : positivism; law; morals; normativism; legal science; Neokantism; Kelsenian jurisprudence; legal practice; value-judgments; conceptual schemes.

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