Separation thesis

For an overview, see Marmor— Bullock eds. Explaining the rationale of legal authority, however, is not the only component of a theory about the normativity of law. But it is a very different sort of project to explain how we should conceive of the law in order for legal practice to be normatively justified.

The law, Raz claims, is a de facto authority. In other words, natural lawyers maintain that the moral content or merit of norms, and not just their social origins, also form part of the conditions of legal validity.

Nature of law meaning

Accordingly, if jurisprudence is chiefly a prescriptive endeavor, then theories of law might end up being radically revisionist in nature though, of course, not necessarily. After all, it might turn out, for example, that positivism provides the best account of our concept of law, or perhaps is the best reductive account of the phenomenon of law itself, even though there are compelling normative arguments for changing the practice or adopting a new concept of it that, say, comports with natural law theory. The argument from the internal point of view A second natural argument in favor of seeing legal theory as inherently evaluative in the relevant sense relies on the idea that any adequate theory of law must take account of the internal point of view that legal practitioners tend to adopt towards the law. See the entry on legal interpretivism. Accordingly, at least in some spheres of conduct, the question of what the law is ought to be held distinct from the question of what morality requires. Accordingly, some have argued that the constructive interpretation view engages with the other methodological views mentioned above only if it denies what they assert: viz. If, however, the task of metaphysical inquiry is also to figure out what is more foundational than something else, giving us a hierarchical structure of the world, where some things ground others, then metaphysics might be a very fruitful framework to work with in trying to elucidate the foundations of legality and legal phenomena more generally. Specifically, if law is a normative phenomenon that gives rise to legal obligations, one might worry that it is not possible to reduce legal facts i. Antecedent to the game of chess, there was no particular coordination problem to solve. Worries loom either way. The point is not that unless authoritative directives can be recognized as such, authorities could not function effectively. But that, too, is implausible. It arguably traces back to the kind of ordinary language philosophy associated with J.

That is, some argument would be needed to explain why we should think that understanding law requires giving a constructive interpretation of it. Whether this is so remains doubtful, however, since meta-questions about the methodology of legal theory prima facie seem to be independent of questions in first-order legal theory like what the determinants of the content of law are.

In short, it could not make the practical difference it is there to make. Accordingly, it is this abstract object—the concept of law—that philosophers care about and aim to investigate using the method of conceptual analysis cf.

nature and characteristics of law

One view takes jurisprudence to be a form of conceptual analysis, which is to say that theories of law aim to provide an account of some concept of law. A natural, though ultimately unsuccessful, reply is that construing something as the best instance of its kind that it can be does not require taking that kind to be good.

Law, they thought, is basically the command of the sovereign. What kinds of things can claim legitimate authority?

Legal positivism

Google Scholar Himma, K. Stanford: CSLI, If the job of a first-order theory of law is to identify the concept of law it would be most desirable for us to employ, then there is a sense in which the resulting theory of law would of course be evaluative. Google Scholar Green, L. A reductionist could in principle defend this sort of inquiry, for instance, by claiming that our particular-case intuitions involve a concept that we have acquired from experience with legal practice, and so such intuitions can be one useful source of information about the nature of law itself. But this is implausible, since legal practice in fact is rife with disagreement about what the grounds of law are and thus, what counts as law or as legal. The argument from legal functions One central argument to the effect that legal theory must be evaluative in the relevant sense begins from the idea that understanding what the law is requires taking a view about what functions it serves Finnis , 12—17; Perry , — Coordination conventions would be obligatory if the norm subjects have an obligation to solve the coordination problem which initially gave rise to the emergence of the relevant convention. To see why, distinguish between a thick evaluative claims, which predicate some kind of moral goodness, or perhaps all-things-considered value, of an item and b thin evaluative claims, which do not. For Dworkin, legal theory is an interpretive enterprise, and offering a constructive interpretation of legal practice requires construing it in its best moral light. The aim of a theory of law, then, would be to systematize these pre-theoretic judgments about the concept of law in order to provide an account of some substantive conception of law. Likewise, one might endorse a reduction of legal facts to some more foundational set of facts e. Positive law must conform in its content to some basic precepts of natural law, that is, universal morality, in order to become law in the first place.

In particular, such positivists might claim that facts about what legal obligations we have simply are descriptive facts about what the law holds that we ought to do—not normative facts about what we really ought to do Shapiro; see also Hart ,

Rated 8/10 based on 78 review
The Impossibility of the Separation Thesis