On Waldron's Normative Positivism

IOSA, JUAN

Revista de la Facultad. Serie II

Facultad de Derecho Universidad Nacional de Córdoba

Lugar: Córdoba; Año: 2021 vol. XII p. 147 - 157

Abstract: First, I offer a reconstruction of Waldron’s normative positivism as hedefended it mainly in “Normative (or Ethical) Positivism” (2001) and “Law andDisagreement” (1999) but also later in his response to Marmor in 2014. Second, Ipresent some arguments addressed to defy his conception of law and democracy:it can`t give us a proper descriptive account of the law at the retail level (hereits claims could only be normative, which is not enough for a theory of law).And it gives us a strictly procedural conception of democratic legitimacy whichcan’t account of procedurally fair but nonetheless illegitimate democracies infunction of the level of injustice of the circumstances or the level of alienationof the society where the procedure works. Regarding this last issue, I will reston some ideas from Atria’s “La Forma del Derecho”.