Abstract

In response to Dworkin’s critique of Hart, legal positivist scholars have divided into two wings: “Inclusive Legal Positivismµ, which supports the orthodox separation thesis and denies that the rule of recognition could embody moral criteria, and “Exclusive Legal Positivismµ, according to which it is conceptually possible – although it is not necessary –, that legal validity may depend on its consistency with moral criteria, if those are embedded in the rule of recognition. Nonetheless, the difference between the two camps may also affect judicial review of legislation. According to the inclusive positivism account of law – if we follow a certain reading – a conflict between a statute and a constitutional clause means that the statute is void, thus it has never product any legal effect. Conversely, in the exclusive positivist perspective such normative conflict might mean that the unconstitutional statute is just voidable, i.e., that it is subject to invalidation. This article critically focuses on this account, attempting to highlight possible implications on a jurisprudential level