Document Type
Article
Abstract
Scholars have long been fascinated by the relation between law and morality, and in particular by the question of whether identifying the law requires making moral judgments. H.L.A. Hart and other legal positivists insist that we can identify the law without making moral judgments. By contrast, Ronald Dworkin and other opponents of legal positivism hold that determining law’s meaning necessarily involves moral reasoning. The most prominent contemporary case against legal positivism, developed by Dworkin, argues that interpretation—giving meaning to legal language—inherently requires moral judgments. While Dworkin’s arguments are powerful, the discourse has overlooked another basis for rejecting legal positivism: one based in the problematic nature of the “fact-value distinction.” Many take for granted a fundamental distinction between questions about facts (the way things are) and questions about values (what we should deem worthwhile). Legal positivism depends on a clear distinction between facts and values because it maintains that law is based entirely in social facts (as separate from value judgments). By highlighting difficulties with the supposed separation between facts and values, this Article presents a novel challenge to legal positivism. However, far from advancing this critique, Dworkin’s own theory embraces the fact-value distinction. Thus, the Article establishes an entirely independent reason to reject legal positivism.
Recommended Citation
Stephen A. Simon,
The Entanglement of Facts and Values: An Overlooked Problem for Legal Positivism,
128
W. Va. L. Rev.
395
(2026).
Available at:
https://researchrepository.wvu.edu/wvlr/vol128/iss2/5