The Limits of Theoretical Disagreements in Jurisprudence

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 (section 1). 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 (section 2). 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 (section 3). Having done that, I discuss law's normativity (section 4), the normative force of legal justification (section 5), and the relation between the former and the latter (section 6). I conclude with a critical comment on Joseph Raz' understanding of the question of law's normativity (appendix).

2021

In this thesis, I discuss and evaluate five theories of jurisprudence explaining how each one answers two central questions. The first, the Grounding Question, asks what it is that makes something a law. The second question, the Normative Question, asks why it is that laws ought to be followed. I use these questions to establish four desiderata for a theory of jurisprudence: a satisfactory theory must answer the Grounding Question and explain its answer, and it must do the same for the Normative Question. The five theories fall into two historically opposed categorizations: legal positivism and natural law theory. In section 2, I explain three positivist and two natural law theories, highlighting how each answers the central questions. In section 3, I discuss two more desiderata that help to explain some of the motivations for holding each view. Finally, in section 4, I compare each theory’s answer to the central questions. I find that while each theory has a satisfactory answer to ...

Ratio Juris

Much controversy has emerged on the demarcation between legal positivism and non-legal positivism with some authors calling for a ban on the-as they see it-nonsensical labelling of legal philosophical debates. We agree with these critics; simplistic labelling cannot replace the work of sophisticated and sound argumentation. In this paper we do not use the term 'legal positivism' as a simplistic label but identify a specific position which we consider to be the most appealing and plausible view on legal positivism. This is the view advocated by Gardner in his paper 'Legal Positivism: 5 1 =2 Myths' (Gardner 2001, 199), where he carefully scrutinises the most convincing and unifying postulates of legal positivism, which he calls "the thin view". The study shows that this thin view presupposes an empirical conception of action that is untenable and implausible since it makes acts of engagement with the law unintelligible to an observer of such acts.

SSRN Electronic Journal, 2017

The aim of this article is to see whether we can account for the normativity of law within the framework of legal positivism and whether the idea of a social convention could be of help in this endeavour. I argue, inter alia, that we should distinguish between (α) the problem of accounting for the normativity of law, conceived as a necessary property of law, and (β) the problem of accounting for the use of normative legal language on the part of legal actors; that the debate about the normativity of law, which mainly concerns (α), is more or less identical to the debate between legal positivists and non-positivists; that one cannot account for the normativity of law, conceived along the lines of (α), within the framework of legal positivism, and that the question of the normativity of law considered within the framework of legal positivism is not an open question.

This paper compares the pragmatist view of law as boundaryless and endogenous with the competing view--generally known as “legal positivism”--which sees law as separate, exogenous and autonomous. Both models are reflected in the methodology of American law; yet the two are at odds. They imply a deep inconsistency in our corporate belief in what law is, giving rise to radically different approaches to legal interpretation. According to the positivist model, law, considered as an adjudicative matrix, either succeeds or fails on its own. When deciding difficult cases this means the positivist must accept the problematic possibility of “legal indeterminacy.” This revision includes a postscript on the pragmatist theory of legal interpretation.

This paper deals with the possibility of faultless disagreement in law. It does this by looking to other spheres in which faultless disagreement appears to be possible, mainly in matters of taste and ethics. Three possible accounts are explored: the realist account, the relativist account, and the expressivist account. The paper tries to show that in the case of legal disagreements, there is a place for an approach that can take into account our intuitions in the sense that legal disagreements are genuine and at times faultless.

2009

This paper deals with the possibility of faultless disagreement in law. And it does looking for other spheres in which faultless disagreement seems possible, mainly the matters of taste and the ethical matters. Three possible accounts are explored: the realist account, the relativist account, and the expressivist account. The paper tries to show that in the case of legal disagreements there is a place for an approach able to take into account our intuitions in the sense that legal disagreements are genuine disagreements and, sometimes, these disagreements are faultless.

Notre Dame Law Review, 2000

Suri: Journal of the Philosophical Association of the Philippines, 2021

A general jurisprudential theory explains the essential features of law. The objective of this paper is to provide a comparison of three kinds of jurisprudential theories that have dominated legal philosophy in the last seventy years. First, there are semantic theories that seek to understand the nature of law by digging out shared linguistic criteria that designate the correct use of legal terms. Second, there are interpretive theories that take the perspective of the judge in constructing the most moral interpretation the law to determine what it "really" says on a case. And third, there are conceptual theories which explicate the logical presuppositions, implications, and concepts that underlie legal phenomena and reveal more than what is made obvious by language. This paper shall also defend Legal Positivism-the view that law has social foundations-against Ronald Dworkin's objection known as the "semantic sting", which claims that positivists are unable to account for the existence of deep controversy in legal practice by virtue of allegedly treating law as a trivial linguistic enterprise. It shall argue, alternatively, that deep controversy occurs because law is an "essentially contested concept", which in turn occurs because law is a complex social institution.