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 (2006)
| Abstract | In this paper, I deploy an argument that I have developed in a number of recent papers in the service of three projects. First, I show that the most influential version of legal positivism – that associated with H.L.A. Hart – fails. The argument’s engine is a requirement that a constitutive account of legal facts must meet. According to this rational-relation requirement, it is not enough for a constitutive account of legal facts to specify non-legal facts that modally determine the legal facts. The constitutive determinants of legal facts must provide reasons for the obtaining of the legal facts (in a sense of “reason” that I develop). I show that the Hartian account is unable to meet this requirement. That officials accept a rule of recognition does not by itself constitute a reason why the standards specified in that rule are part of the law of the community. I argue that it is false that understanding the explanatory significance of officials’ acceptance of a rule is part of our reflective understanding of the nature of law. The second project of the paper is to respond to a family of objections that challenge me to explain why normative facts and descriptive facts together are better placed to provide reasons for legal facts than descriptive facts alone. A unifying theme of the objections is that explanations have to stop somewhere; descriptive facts, it is suggested, are no worse a stopping place than normative facts. Third, the paper spells out a consequence of the rational-relation requirement: if an account of what, at the most basic level, determines legal facts is true in any possible legal system, it is true in all possible legal systems. For example, if a Hartian account of legal facts is true in any possible legal system, it is true in all possible legal systems. I use this all-or-nothing result in my critique of a Hartian account, but the result is of interest in its own right. | |||||||||
| Keywords | No keywords specified (fix it) | |||||||||
| Categories | ||||||||||
| Options |
|
|||||||||
Download options| PhilPapers Archive |
Upload a copy of this paper Check publisher's policy on self-archival Papers currently archived: 5,672 |
| External links |
  Try with proxy. |
| Through your library | Configure |
Similar books and articlesJ. R. Lucas (1958). On Not Worshipping Facts. Philosophical Quarterly 8 (31):144-156.
Stephen Perry (2009). Beyond the Distinction Between Positivism and Non-Positivism. Ratio Juris 22 (3):311-325.
David Enoch (2011). Reason-Giving and the Law. In Leslie Green & Brian Leiter (eds.), Oxford Studies in Philosophy of Law. Oxford University Press.
C. Heidemann (2000). The Creation of Normative Facts. Law and Philosophy 19 (2):263-281.
Mark Jago & Stephen Barker (2011). Being Positive About Negative Facts. Philosophy and Phenomenological Research 85 (1):117-138.
Veronica Rodriguez-Blanco (2010). Objectivity in Law. Philosophy Compass 5 (3):240-249.
Jules L. Coleman (2009). Beyond Inclusive Legal Positivism. Ratio Juris 22 (3):359-394.
Mark Greenberg (2006). How Facts Make Law. In Scott Hershovitz (ed.), Exploring Law's Empire: The Jurisprudence of Ronald Dworkin. Oxford University Press.
Analytics
Monthly downloads |
Added to index2009-01-28Total downloads27 ( #45,755 of 549,065 )Recent downloads (6 months)1 ( #63,185 of 549,065 )How can I increase my downloads? |
My notes
Discussion
