Bibliographic record
Abstract
Some legal theorists argue that legal determinations apparently based on moral arguments actually involve an appeal to extra-legal standards because legal reasoning and the conceptual structure of a legal system necessarily excludes morality (Exclusive Legal Positivism). Others argue that moral principles can be _incorporated into legal systems (Inclusive Legal Positivism), or must be so incorporated (Dworkinian Interpretivism), where they operate as legal rules. Does Canada's Charter of Rights and Freedoms actually incorporate the moral principle of equality, or does it merely authorize judges to appeal to that extra-legal principle as a legitimate reason for invalidating those laws which violate it? To answer that question the philosophical legal theorist must evaluate and develop an account of juridical law in the face of epistemic uncertainty about the relation between law and morality (i.e. whether it is necessary or contingent). In this work I first consider the meta-theoretical characteristics of legal theories, particularly their methodologies and the evaluative criteria applied to them, so as to identify and make explicit the source of legal-theoretical epistemic uncertainty. I then argue for an approach to describing and explaining law whereby we neither ignore epistemic uncertainty nor dispense with it by means of a stipulative definition. This inclusive positivist approach, however, also requires that we abandon the ideal of a presuppositionless inquiry. Accordingly, I demonstrate how a descriptive-explanatory philosophical account of law can make use of a presupposition and, ultimately, offer a sound defense for it. Finally, through an analysis of some aspects of Canadian constitutional adjudication, I show that inclusive positivism is most able to describe and explain the legal-moral uncertainty exhibited by participants in legal systems of a certain type, and so offers the best philosophical account of legal practices as they are understood by those who instantiate them.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.011 | 0.018 |
| Meta-epidemiology (narrow) | 0.001 | 0.000 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.005 | 0.003 |
| Science and technology studies | 0.005 | 0.039 |
| Scholarly communication | 0.010 | 0.014 |
| Open science | 0.002 | 0.005 |
| Research integrity | 0.007 | 0.007 |
| Insufficient payload (model declined to judge) | 0.006 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".