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Article
Legal Positivism and Russell's Paradox
Washington University Jurisprudence Review
  • David G. Carlson, Benjamin N. Cardozo School of Law
Publication Date
1-1-2013
Abstract

In this Article, I argue that legal positivism is subject to the same paradox as was engendered by Frege's set theory-a paradox that has come to be known as Russell's Paradox. Basically, Frege tried to define what a set is. Russell showed that, because of self-reference, any attempt to define the word "set" led to formal condition. I argue that Russell's analysis can be applied to legal positivism, if "legal positivism" is defined to mean that a complete and closed rule of recognition for law is a logical possibility. I also argue that, to the extent legal positivism claims that law is not necessarily related to morality, then legal positivism is committed to the claim that there is a determinate rule of recognition. Only then can one be sure that a given law is purely a legal rule and not a moral rule. Because of the paradox, it is not logically coherent to divorce law and morality entirely, because no final and complete rule of recognition can possibly exist.

Publisher
Washington University School of Law
Keywords
  • Bertrand Russell,
  • positivism,
  • Hart,
  • Kelsen,
  • Raz,
  • rule of recognition,
  • set theory,
  • morality
Disciplines
Citation Information
David G. Carlson. "Legal Positivism and Russell's Paradox" Washington University Jurisprudence Review Vol. 5 Iss. 2 (2013) p. 257 - 288
Available at: http://works.bepress.com/david_carlson/155/