David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
Learn more about PhilPapers
Ratio Juris 16 (4):469-485 (2003)
In this article, I distinguish between a moral and a strictly legal conception of legal normativity, and argue that legal positivists can account for law's normativity in the strictly legal but not in the moral sense, while pointing out that normativity in the former sense is of little interest, at least to lawyers. I add, however, that while the moral conception of law's normativity is to be preferred to the strictly legal conception from the rather narrow viewpoint of the study of law's normativity, it is less attractive than the latter from the broader viewpoint of the study of the nature of law. I then distinguish between a moral and a strictly legal conception of the normative force of legal justification, and argue that legal positivists may without contradiction embrace the moral conception, and that therefore the analysis of the normative force of legal justification need not be a problem for legal positivists. I conclude that, on the whole, we have reason to prefer legal positivism to natural law theory. I begin by introducing the subject of jurisprudence . I then introduce the natural law/legal positivism debate, suggesting that we ought to understand it as a debate about the proper way to explicate the concept of law . I proceed to argue that legal decision‐making is a matter of applying legal norms to facts, and that syllogistic reasoning plays a prominent role in legal decision‐making thus conceived . Having done that, I discuss law's normativity , the normative force of legal justification , and the relation between the former and the latter . I conclude with a critical comment on Joseph Raz’ understanding of the question of law's normativity
|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
H. L. A. Hart (1994). The Concept of Law. Oxford University Press.
Rudolf Carnap (1962). Logical Foundations of Probability. Chicago]University of Chicago Press.
Rudolf Carnap (1947/1956). Meaning and Necessity. University of Chicago Press.
John Finnis (1980/1979). Natural Law and Natural Rights. Oxford University Press.
Citations of this work BETA
Frederick Schauer (2010). Was Austin Right After All? On the Role of Sanctions in a Theory of Law. Ratio Juris 23 (1):1-21.
Torben Spaak (2015). Realism About the Nature of Law. Ratio Juris 28 (4):n/a-n/a.
Torben Spaak (2009). Karl Olivecrona on Judicial Law-Making. Ratio Juris 22 (4):483-498.
Similar books and articles
David Enoch (2011). Reason-Giving and the Law. In Leslie Green & Brian Leiter (eds.), Oxford Studies in Philosophy of Law. Oxford University Press
Robert P. George (ed.) (1996). The Autonomy of Law: Essays on Legal Positivism. Oxford University Press.
Francois Chevrette & Hugo Cyr, Legal Positivism? What Are You Talking About? ('De Quel Positivisme Parlez-Vous?').
G. Pino (1999). The Place of Legal Positivism in Contemporary Constitutional States. Law and Philosophy 18 (5):513-536.
Vadim Verenich (2011). On Relationships Between the Logic of Law, Legal Positivism and Semiotics of Law. Sign Systems Studies 39 (2-4):145-195.
Jules L. Coleman (2009). Beyond Inclusive Legal Positivism. Ratio Juris 22 (3):359-394.
Robert Alexy (2002). The Argument From Injustice: A Reply to Legal Positivism. Oxford University Press.
Brian Bix (2006). Legal Positivism and 'Explaining' Normativity and Authority. American Philosophical Association Newsletter 5 (2 (Spring 2006)):5-9.
Torben Spaak (2011). Karl Olivecrona's Legal Philosophy. A Critical Appraisal. Ratio Juris 24 (2):156-193.
Joseph Raz (1979). The Authority of Law: Essays on Law and Morality. Oxford University Press.
Thom Brooks (2007). Between Natural Law and Legal Positivism: Dworkin and Hegel on Legal Theory. Georgia State University Law Review 23 (3):513-60.
F. Atria (1999). Legal Reasoning and Legal Theory Revisited. Law and Philosophy 18 (5):537-577.
Mario Jori (ed.) (1992). Legal Positivism. New York University Press.
Neil MacCormick (2007). Institutions of Law: An Essay in Legal Theory. Oxford University Press.
Kenneth M. Ehrenberg (2011). The Anarchist Official: A Problem for Legal Positivism. Australian Journal of Legal Philosophy 36:89-112.
Added to index2010-09-02
Total downloads24 ( #137,630 of 1,780,753 )
Recent downloads (6 months)3 ( #165,698 of 1,780,753 )
How can I increase my downloads?