ON WALDRON’S NORMATIVE POSITIVISM

Abstract

First, I offer a reconstruction of Waldron’s normative positivism as he defended it mainly in “Normative (or Ethical) Positivism” (2001) and “Law and  Disagreement” (1999) but also later in his response to Marmor in 2014. Second, I
present 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 (here its 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 which can’t account of procedurally fair but nonetheless illegitimates democracies in function of the level of injustice of the circumstances or the level of alienation of the society where the procedure works. Regarding this last issue, I will rest on some ideas from Atria’s “La Forma del Derecho”.