The Place of Legitimacy in Legal Theory
33 Pages Posted: 9 Mar 2010 Last revised: 17 Jul 2011
Date Written: March 8, 2010
In this essay I argue that to understand debates in jurisprudence one needs to distinguish clearly between four concepts: validity, content, normativity, and legitimacy. More specifically I show that debates between legal positivists and Dworkin should be understood not, as it is often said, as debates on the conditions of validity, but rather as debates on the right way of understanding the relationship between these four concepts. After presenting the two different ways in which legal positivists and Dworkin understand this relationship, I argue that the Dworkinian approach is superior to the positivist one. The positivist account begins with an attempt to explain the conditions of validity and to leave the question of assessment of valid legal norms to the second stage of inquiry. But though appealing, I argue that the notion of validity cannot be given sense outside a preliminary consideration of legitimacy.
Keywords: legal positivism, Dworkin, legitimacy, legal validity, jurisprudence
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