An Argument Against the Social Fact Thesis (and Some Additional Preliminary Steps Towards a New Conception of Legal Positivism)

60 Pages Posted: 1 Aug 2010

See all articles by Kevin Toh

Kevin Toh

University College London

Date Written: 2008

Abstract

According to the view almost universally accepted by legal philosophers, what distinguishes legal positivism from other legal theories is its commitment to the so-called social fact thesis. According to that thesis, the existence of a law, or the legal validity of a norm, is ultimately a matter of some facts about the psychology and/or behavior of a group of people. I argue in this paper that once we take seriously the normative nature of internal legal judgments, we come to realize that the social fact thesis (at least as commonly formulated) is incorrect. In making internal legal judgments, we commit to act according to some norms or principles. It follows that the existence of a law or the legal validity of a norm is ultimately a normative, rather than a factual, matter. Instead of concluding that legal positivism should be rejected in favor of some alternative legal theory, I conclude that the standard way of conceiving legal positivism should be rejected in favor of a more plausible conception.

Suggested Citation

Toh, Kevin, An Argument Against the Social Fact Thesis (and Some Additional Preliminary Steps Towards a New Conception of Legal Positivism) (2008). Available at SSRN: https://ssrn.com/abstract=1650749 or http://dx.doi.org/10.2139/ssrn.1650749

Kevin Toh (Contact Author)

University College London ( email )

Bentham House
4-8 Endsleigh Gardens
London, WC1E OEG
United Kingdom

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