David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
Learn more about PhilPapers
This paper argues that legal theorists should give up the pursuit of determining the mode of law's existence - whether in the form of rules, as in HLA Hart, or in the form of norms, as in Hans Kelsen. Attempting to determine the mode of law's existence results in two mistakes: first, it presupposes the possibility of content-determination (of rules or norms), resulting in a more (Kelsen) or less (Hart) stringent reference theory of meaning; second, it presupposes unproblematic access to a sphere of brute reality upon which the existence of rules or norms is said to supervene. Both mistakes are illustrated by reference to a reading of Hans Kelsen's Pure Theory of Law and HLA Hart's The Concept of Law. Two alternatives for legal theory are offered: first, meta-analysis, as exemplified in the paper, whereby a theorist considers the puzzles and difficulties of taking a certain theoretical aim (in this paper, that of determining the mode of law's existence) and talking about it in specific ways (in this paper, using existence talk); and second, an ontology-free legal theory the task of which is to pursue the improvement of the role that legal work plays in the protection of the moral quality of the lives of individuals and communities. The foundations of an ontology-free legal theory are illustrated by reference to the pragmatic pluralism of Hilary Putnam's approach to ethics in his Ethics without Ontology.
|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
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Frederick Schauer (2010). Was Austin Right After All? On the Role of Sanctions in a Theory of Law. Ratio Juris 23 (1):1-21.
Stanley L. Paulson & Bonnie Litschewski Paulson (eds.) (1998). Normativity and Norms: Critical Perspectives on Kelsenian Themes. Oxford University Press.
F. Atria (1999). Legal Reasoning and Legal Theory Revisited. Law and Philosophy 18 (5):537-577.
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.
Lars Vinx (2007). Hans Kelsen's Pure Theory of Law: Legality and Legitimacy. Oxford University Press.
Dick W. P. Ruiter (1997). Legal Validity Qua Specific Mode of Existence. Law and Philosophy 16 (5):479 - 505.
P. W. (1997). Legal Validity Qua Specific Mode of Existence. Law and Philosophy 16 (5):479-505.
Hans Kelsen (1990). General Theory of Norms. Oxford University Press.
Added to index2009-01-28
Total downloads9 ( #364,068 of 1,907,403 )
Recent downloads (6 months)1 ( #464,819 of 1,907,403 )
How can I increase my downloads?