David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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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
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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.
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