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32 Geo. J. Legal Ethics 77 (2019)
Is Positivist Legal Ethics an Oxymoron

handle is hein.journals/geojlege32 and id is 82 raw text is: Is Positivist Legal Ethics an Oxymoron? ALICE WOOLLEY* ABSTRACT Positivist legal ethics defines the duties of lawyers in light of the structure and ethics of law, and the relationship between the system of laws and those to whom it applies. But is positivist legal ethics in fact a theory of legal ethics? That is, does it identify the ethical principles and virtues of the good lawyer? This paper argues that it does not. Positivist legal ethics provides a theory of the ethics of law, from which it identifies the duties with which lawyers must comply. The duties it identifies are legal, not moral or ethical. That does not make positivist legal ethics wrong, but it does have important implications for the scope and limits of the theory. It means certain questions are central to positivist legal ethics that may not be that important to other theories (e.g., how law ought to be interpreted or reformed). But at the same time there are other questions that positivist legal ethics cannot answer. Moral questions left to law- yers' discretion or that the law does not address, and the point at which a law- yer may simply be unwilling to violate moral norms even if her role requires it, are things which positivist legal ethics cannot illuminate. Understanding the scope and limits of positivist legal ethics is essential for those who want to write and teach from that perspective, as well as for those who challenge it. TABLE OF CONTENTS INTRODUCTION ......................................... 78 I. POSITIVIST LEGAL ETHICS ............................ 83 A. THE POSITIVIST PERSPECTIVE ON LAW ................. 83 B. THE POSITIVIST PERSPECTIVE ON LAWYERS ............ 87 II. POSITIVIST LEGAL ETHICS IS AN OXYMORON ................ 91 * Faculty of Law, University of Calgary. Thanks to Amy Salyzyn and Brad Wendel for their helpful com- ments on earlier drafts, and to Massimo La Torre and Andrea Romeo of the University of Catanzaro who encouraged me to write this paper and to present it there. c 2019, Alice Woolley.

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