Juridical Acts and the Gap between Is and Ought
Maastricht European Private Law Institute Working Paper No. 2012/10
25 Pages Posted: 14 Apr 2012
Date Written: April 13, 2012
This paper argues that Searle’s argument how to derive ought from is, is basically correct, but that it would become stronger if the argument would rely of contracts, rather than on promises. The reason is that contracts do not necessarily lead to obligations and that makes clear that the way in which contracts lead to new facts has nothing to do with obligations or oughts. That is even the case when a contract is used to create an obligation. The mode of operation of contracts and other juridical acts is that of constitutive acts, acts which bring about changes in the world through the operation of rules. One kind of change is the generation of an ought where previously there was none. If one simulates the generation of an ought in the form of an argument, this may very well be an argument with only is-premises and an ought-conclusion.
The paper also discusses some objections against the above argument and the relevancy of the conclusion that it is possible to derive ought form is for an understanding of law’s nature on the border of is and ought.
Keywords: is and ought, naturalistic fallacy, Hume’s law, institutional facts, obligation, duty, nature of law
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