Habermas and legal positivism

This article analyzes Habermas' critique of legal positivism based on the relationship between law and morality, focusing on the three demands that are made to morality, namely: cognitive, motivational and organizational demands. Proponents of a strong relationship between law and morality, like Dworkin, argue that morality should be called upon to solve difficult cases of law. Habermas seems to claim just the opposite, namely, that it is the law that is called upon to fill the cognitive deficit in morals. The text explores the consequences of this statement for Habermas's discursive theory of law, in relation to one of the fundamental theses of legal positivism, that morality cannot be a foundation for law precisely because of its cognitive indeterminacy. The text compares how much the discursive theory of Habermasian law approaches or departs from this fundamental thesis of legal positivism.