David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Ratio Juris 22 (3):359-394 (2009)
In this essay, I characterize the original intervention that became Inclusive Legal Positivism, defend it against a range of powerful objections, explain its contribution to jurisprudence, and display its limitations and its modest jurisprudential significance. I also show how in its original formulations ILP depends on three notions that are either mistaken or inessential to law: the separability thesis, the rule of recognition, and the idea of criteria of legality. The first is false and is in event inessential to legal positivism. The second is inessential to legal positivism. The third is likely inessential to law. I then characterize the central claim of ILP in a way that relies on none of these: ILP is the claim that necessarily social facts determine the determinants of legal content. I show that ILP so conceived leaves the central debates in law largely untouched. I suggest how the most fundamental of these—the question of the normativity of law—at least can be usefully addressed. The essay closes by suggesting that even though one can distinguish the social from the normative dimensions of law, a theory of the nature of law is necessarily an account of the relationship between the two: It is a theory either of the difference that certain distinctive social facts make in normative space, or it is an account of the distinctive normative difference that law makes, and the social and other facts that are necessary to explain that difference. One can distinguish between but one cannot separate the social from the normative aspects of legality.
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
R. M. Dworkin (1988). Law's Empire. Harvard University Press.
Joseph Raz (1994). Ethics in the Public Domain: Essays in the Morality of Law and Politics. Oxford University Press.
Jules L. Coleman (2001). The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory. Oxford University Press.
Jules L. Coleman (2007). Beyond the Separability Thesis: Moral Semantics and the Methodology of Jurisprudence. Oxford Journal of Legal Studies 27 (4):581-608.
Scott J. Shapiro (2007). The "Hart-Dworkin" Debate : A Short Guide for the Perplexed. In Arthur Ripstein (ed.), Ronald Dworkin. Cambridge University Press 22--49.
Citations of this work BETA
Christopher Essert (2013). Legal Obligation and Reasons. Legal Theory 19 (1):63-88.
Similar books and articles
G. Pino (1999). The Place of Legal Positivism in Contemporary Constitutional States. Law and Philosophy 18 (5):513-536.
Joseph Raz (1979). The Authority of Law: Essays on Law and Morality. Oxford University Press.
Vittorio Villa (2009). Inclusive Legal Positivism, Legal Interpretation, and Value-Judgments. Ratio Juris 22 (1):110-127.
Lars Vinx (2007). Hans Kelsen's Pure Theory of Law: Legality and Legitimacy. Oxford University Press.
Robert P. George (ed.) (1996). The Autonomy of Law: Essays on Legal Positivism. Oxford University Press.
Stephen Perry (2009). Beyond the Distinction Between Positivism and Non-Positivism. Ratio Juris 22 (3):311-325.
Mark Greenberg (2006). Hartian Positivism and Normative Facts : How Facts Make Law II. In Scott Hershovitz (ed.), Exploring Law's Empire: The Jurisprudence of Ronald Dworkin. Oxford University Press
Scott J. Shapiro (2009). Was Inclusive Legal Positivism Founded on a Mistake? Ratio Juris 22 (3):326-338.
Wilfrid J. Waluchow (1994). Inclusive Legal Positivism. Oxford University Press.
Robert Alexy (2008). On the Concept and the Nature of Law. Ratio Juris 21 (3):281-299.
Added to index2009-08-27
Total downloads145 ( #20,621 of 1,780,606 )
Recent downloads (6 months)3 ( #165,698 of 1,780,606 )
How can I increase my downloads?