The Real Standard Picture, and How Facts Make It Law: a Response to Mark Greenberg


Abstract
Mark Greenberg has attempted to refute what he regards as a popular metaphysical thesis about how law is constituted. He calls it the “Standard Picture,” and it includes a “Communication Theory.” His own “Moral Impact Theory” of law is built partly on that attempted refutation. I defend positions that are very close to the Standard Picture and Communication Theory, albeit different in important respects. In particular, they are not primarily metaphysical theses, although they have metaphysical implications. They are actual fundamental doctrines of constitutional law in Anglo-American legal systems, which I call Legislative Supremacy and Legislative Intention. I argue that: these doctrines, and their metaphysical implications, vindicate much of the Standard Picture, and explain why so many theorists have been attracted to it; the doctrines are inconsistent with Greenberg’s Moral Impact Theory; and the best theory of what makes them part of the law is legal positivism: in other words, facts about legal practices make them law. In arguing for and, I examine in detail and respond to Greenberg’s account of the legal principles and practice of statutory interpretation. I distinguish between three kinds of interpretation: clarifying, supplementing and rectifying. In arguing for, I contend that legal positivism satisfies Greenberg’s insistence that any metaphysical account of what constitutes law must satisfy a “rationality requirement.”
Keywords No keywords specified (fix it)
Categories (categorize this paper)
DOI 10.1093/ajj/auz011
Options
Edit this record
Mark as duplicate
Export citation
Find it on Scholar
Request removal from index
Revision history

Download options

Our Archive


Upload a copy of this paper     Check publisher's policy     Papers currently archived: 45,283
External links

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.

Add more references

Citations of this work BETA

No citations found.

Add more citations

Similar books and articles

The Standard Picture and its Discontents.Mark Greenberg - 2011 - In Leslie Green & Brian Leiter (eds.), Oxford Studies in Philosophy of Law. Oxford University Press.
How Facts Make Law.Greenberg Mark - 2004 - Legal Theory 10 (3).
On Practices and the Law.Mark Greenberg - 2006 - Legal Theory 12 (2):113-136.
How Facts Make Law.Mark Greenberg - 2006 - In Scott Hershovitz (ed.), Exploring Law's Empire: The Jurisprudence of Ronald Dworkin. Oxford University Press. pp. 157-198.
Metafizički minimalizam.Fritz J. McDonald - 2011 - Prolegomena 10 (1):39-52.
Greenberg's Kant and the Problem of Modernist Painting.Paul Crowther - 1985 - British Journal of Aesthetics 25 (4):317-325.
Moral Metaphysics.Daniel Star - 2013 - In Roger Crisp (ed.), The Oxford Handbook of the History of Ethics. Oxford University Press.
Direct Moral Grounding and the Legal Model of Moral Normativity.Benjamin Sachs - 2015 - Ethical Theory and Moral Practice 18 (4):703-716.

Analytics

Added to PP index
2019-10-23

Total views
10 ( #760,809 of 2,279,964 )

Recent downloads (6 months)
10 ( #85,279 of 2,279,964 )

How can I increase my downloads?

Downloads

My notes

Sign in to use this feature