On the Role of Positive Morality in Legal Interpretation

The role of morality in legal interpretation is unclear and contested. According to the positivistic separation thesis, there is no necessary connection between law and morality, while non-positivists hold that there is a necessary connection. ‘Morality’ typically refers, in this context, to correct morality. From the standpoint of correct morality, a moral norm is correct if and to the extent that it can be morally justified, independent from any authoritative issuance and/or social efficacy. By contrast, positive morality consists of a collectively held belief that something is moral or not. Positive morality is an empirical fact. The question arises which role which kind of morality can play in either positivistic and non-positivistic reconstructions of legal argumentation.