David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
In Matthew D. Adler & Kenneth E. Himma (eds.), THE RULE OF RECOGNITION AND THE UNITED STATES CONSTITUTION. Oxford University Press (2008)
Sometimes the fact that something is the law can be justified by the law. For example, the Sarbanes-Oxley Act is the law because it was enacted by Congress pursuant to the Commerce Clause. But eventually legal justification of law ends. The ultimate criteria of validity in a legal system cannot themselves be justified by law. According to H.L.A. Hart, justification of these ultimate criteria is still available, by reference to social facts concerning official acceptance - facts about what Hart calls the "rule of recognition" for the system. Drawing upon criticisms of sociological accounts of the law that can be found in the writings of Hans Kelsen, I argue in this essay that Hart's approach cannot account for statements about the law that assert the independence of legal validity from rule of recognition facts. I offer as an alternative a legal quietist approach, which can account for such statements. For the quietist, legal justification exhausts the possible justification for law. If our judgments about the law are fundamental, in the sense that they cannot be justified by other judgments about the law, then they have no justification (which is not to say that they should be abandoned). I argue that legal quietism is exemplified - if somewhat imperfectly - in Kelsen's writings, and I end the essay by exploring some difficulties that the quietist approach must face.
|Keywords||Hans Kelsen HLA Hart Legal Positivism Quietism|
|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
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Lars Vinx (2007). Hans Kelsen's Pure Theory of Law: Legality and Legitimacy. Oxford University Press.
M. H. & G. W. (1998). Continuity and Change in Legal Positivism. Law and Philosophy 17 (3):233-250.
Huib M. De Jong & Wouter G. Werner (1998). Continuity and Change in Legal Positivism. Law and Philosophy 17 (3):233-250.
Huib M. De Jong & Wouter G. Werner (1998). Continuity and Change in Legal Positivism. Law and Philosophy 17 (3):233 - 250.
Hans Kelsen (1992). Introduction to the Problems of Legal Theory: A Translation of the First Edition of the Reine Rechtslehre or Pure Theory of Law. Oxford University Press.
Joseph Raz (1979). The Authority of Law: Essays on Law and Morality. Oxford University Press.
Stanley L. Paulson & Bonnie Litschewski Paulson (eds.) (1998). Normativity and Norms: Critical Perspectives on Kelsenian Themes. Oxford University Press.
Panu Minkkinen (2005). Why is Law a Normative Discipline? On Hans Kelsen's 'Normology'. Res Publica 11 (3):235-249.
Matthew H. Kramer (2013). In Defense of Hart. In Wil Waluchow & Stefan Sciaraffa (eds.), Philosophical Foundations of the Nature of Law. Oup Oxford. 22.
L. S. (2000). The Weak Reading of Authority in Hans Kelsen's Pure Theory of Law. Law and Philosophy 19 (2):131-171.
Hans Kelsen (1990). General Theory of Norms. Oxford University Press.
Added to index2012-10-23
Total downloads11 ( #196,012 of 1,696,808 )
Recent downloads (6 months)3 ( #187,594 of 1,696,808 )
How can I increase my downloads?