Emad H. Atiq (Cornell University – Law School) has posted There Are No Easy Counterexamples to Legal Anti-Positivism (Journal of Ethics & Social Philosophy, Forthcoming) on SSRN. Here is the abstract:
Legal anti-positivism is widely believed to be a general theory of law that generates far too many false negatives. If anti-positivism is true, certain rules bearing all the hallmarks of legality are not in fact legal. This impression, fostered by both positivists and anti-positivists, stems from an overly narrow conception of the kinds of moral facts that ground legal facts: roughly, facts about what is morally optimific — morally best or morally justified or morally obligatory given our social practices. A less restrictive view of the kinds of moral properties that ground legality results in a form of anti-positivism that can accommodate any legal rule consistent with positivism, including the alleged counterexamples. I articulate an ‘inclusive’ form of anti-positivism that is not just invulnerable to extensional challenge from the positivist. It is the only account that withstands extensional objections, while incorporating, on purely conceptual grounds, a large part of the content of morality into law.