Does 'How Facts Make Law' Prove Too Much?
UCLA School of Law and Department of Philosophy
UCLA School of Law Research Paper No. 08-18
This paper was presented at the American Philosophical Association's 2007 Berger Prize session. It is a reply to Ken Himma's comment on my paper, "How Facts Make Law," which was awarded the 2007 Berger Prize for the outstanding paper in philosophy of law published during 2004 and 2005.
In his thoughtful and thought-provoking paper, Himma claims that the argument of "How Facts Make Law" must go wrong somewhere because, if successful, the argument shows too much with too little. In particular, he claims that my argument, with very limited resources, reaches a conclusion that entails that subjectivist and non-cognitivist theories of morality are false. Himma insists that I should not be able to resolve such controversial debates in meta-ethics with no meta-ethical or even normative resources.
My basic response has two parts. First, it is not correct that my conclusion entails that subjectivist and non-cognitivist theories of morality are false. My conclusion itself is neutral as to the metaphysics of morality. Second, it's not even true that my argument, if successful, shows that there must be moral facts. The reason is that I rely on the plausibility of the existence of moral facts (whatever their metaphysics) in arguing for my conclusion.
In sum, my argument's conclusion doesn't get us nearly as far as Himma thinks. Nor are my argument's resources as meager as he claims.
Number of Pages in PDF File: 14
Keywords: philosophy, legal positivism, law and morality, metaethics, moral facts, normativity, Dworkin, Greenberg, Hart, determinants of legal content, criteria of legalityworking papers series
Date posted: May 30, 2008
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