Edinburgh Napier University

  When first I began this paper, I envisaged it as a fairly straightforward exercise in comparison between the Sheffield School’s and Discourse Theory’s varieties of legal idealism or anti-positivism (these terms being synonymous for the types of theory that contest positivism’s separation thesis, that is, the contention that there is
no necessary conceptual connection between law and morality). One obvious distinction, for example, is between the moral substance at the heart of these respective theories: the Sheffield School’s legal theory being founded on Alan Gewirth’s Principle of Generic Consistency, and Alexy’s theory focusing on Radbruch’s intolerable
degree of injustice. However, the more I thought about the two respective theories, the more interested I became in one particular issue: the denial of the separation thesis that constitutes legal idealism. Here, I present a paper which is not so much concerned with the substance of two different types of legal idealism or antipositivism, but which focuses on the question of whether and in what way either or both of the theories can correctly be characterised as legal idealist or anti-positivist. I focus in this paper on two works in particular: Deryck Beyleveld and Roger Brownsword’s Law as a Moral Judgment (1994), and Robert Alexy’s The Argument from Injustice (2002).