Avoiding law's existence

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)
 Save to my reading list
Follow the author(s)
My bibliography
Export citation
Find it on Scholar
Edit this record
Mark as duplicate
Revision history Request removal from index
Download options
PhilPapers Archive

Upload a copy of this paper     Check publisher's policy on self-archival     Papers currently archived: 24,479
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

Monthly downloads

Added to index


Total downloads

9 ( #439,905 of 1,925,592 )

Recent downloads (6 months)

1 ( #418,223 of 1,925,592 )

How can I increase my downloads?

My notes
Sign in to use this feature

Start a new thread
There  are no threads in this forum
Nothing in this forum yet.