David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Ratio Juris 24 (4):413-434 (2011)
According to contemporary legal positivism, law claims to create obligations. In order for law to be able to create obligations, it must be capable of having authority. Legal positivism claims that for law to be capable of having authority, it only has to meet non-moral or non-normative conditions of authority. In this paper it is argued that law can only be capable of having authority if it also meets certain normative conditions. But if something must meet certain normative conditions in order to be capable of having authority and if it must be capable of having authority in order to be law, then it is only law if it is conceivable that it meets these normative conditions and this can only be ascertained by means of an evaluation. Therefore, legal positivism's claim that determining what the law is does not necessarily, or conceptually, depend on moral or other evaluative considerations (the separation thesis) is incompatible with its claim that law must be able to create obligations. Further, an analysis of Hart's concept of law shows that it is not only possible that the identification of the law depends on moral evaluation, as Hart claims, but that it is conceptually necessary that it does
|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
Jules L. Coleman (2007). Beyond the Separability Thesis: Moral Semantics and the Methodology of Jurisprudence. Oxford Journal of Legal Studies 27 (4):581-608.
Jules L. Coleman (2001). The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory. Oxford University Press.
Govert den Hartogh (2002). Mutual Expectations: A Conventionalist Theory of Law. Kluwer Law International.
Mark Greenberg (2006). How Facts Make Law. In Scott Hershovitz (ed.), Exploring Law's Empire: The Jurisprudence of Ronald Dworkin. Oxford University Press. 157-198.
H. L. A. Hart (1994). The Concept of Law. Oxford University Press.
Citations of this work BETA
No citations found.
Similar books and articles
Anthony Reeves (2010). The Moral Authority of International Law. APA Newsletter on Philosophy and Law 10 (1):13-18.
Joseph Raz (1979). The Authority of Law: Essays on Law and Morality. Oxford University Press.
Bas van der Vossen (2011). Assessing Law's Claim to Authority. Oxford Journal of Legal Studies 31 (3):481-501.
Neil MacCormick (2007). Institutions of Law: An Essay in Legal Theory. Oxford University Press.
Stephen Perry (2009). Beyond the Distinction Between Positivism and Non-Positivism. Ratio Juris 22 (3):311-325.
Robert Alexy (2002). The Argument From Injustice: A Reply to Legal Positivism. Oxford University Press.
Robert Alexy (2008). On the Concept and the Nature of Law. Ratio Juris 21 (3):281-299.
James Morauta (2004). Three Separation Theses. Law and Philosophy 23 (2):111-135.
G. Pino (1999). The Place of Legal Positivism in Contemporary Constitutional States. Law and Philosophy 18 (5):513-536.
Jon Garthoff (2010). Legitimacy is Not Authority. Law and Philosophy 29 (6):669-694.
Roger Cotterrell (2000). Common Law Approaches to the Relationship Between Law and Morality. Ethical Theory and Moral Practice 3 (1):9-26.
John Linarelli (2009). Analytical Jurisprudence and the Concept of Commercial Law. Penn State Law Review 114 (1):119-215.
B. Roermund (2000). Authority and Authorisation. Law and Philosophy 19 (2):201-222.
Added to index2011-11-04
Total downloads17 ( #137,133 of 1,696,233 )
Recent downloads (6 months)2 ( #239,057 of 1,696,233 )
How can I increase my downloads?