Legal Positivism and 'Explaining' Normativity and Authority
American Philosophical Association Newsletter on Philosophy and Law, Vol. 5, No. 2, Spring 2006
6 Pages Posted: 23 Jan 2009 Last revised: 29 Jan 2009
Date Written: Spring 2006
It has become increasingly common for legal positivist theorists to claim that the primary objective of legal theory in general, and legal positivism in particular, is "explaining normativity." The phrase "explaining normativity" can be understood either ambitiously or more modestly. The more modest meaning is an analytical exploration of what is meant by legal or moral obligation, or by the authority claims of legal officials. When the term is understood ambitiously - as meaning an explanation of how conventional and other empirical facts can give rise to moral obligations - as many legal positivist theorists seem to be using the phrase, the project is contrary to basic tenets of legal positivism, and has regularly led theorists to propose doubtful theories that ignore "is"/"ought" divisions.
Keywords: legal positivism, analytical legal theory, natural law theory
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By Kurt Gerry