Reason-Giving and the Law
Oxford Studies in the Philosophy of Law 1 (2011), 1-38.
38 Pages Posted: 17 May 2015
Date Written: 2011
A spectre is haunting legal positivists – and perhaps legal philosophers more generally – the spectre of the normativity of law. Whatever else law is, it is sometimes said, it is normative, and so whatever else a philosophical account of law accounts for, it should account for the normativity of law.
Of the many different possible ways of understanding "the" problem of the normativity of law, I focus here on the one insisting on the need to explain the reason-giving force of the law. But, I argue, once we are clear on just what reason-giving consists in, and on what claims about the reason-giving force of the law are at all plausible, accommodating the fact that the law gives reasons for action can be seen to be a pseudo-problem. In particular, not only doesn't legal positivism face an especially serious challenge here, but it can be seen to have a (modest) advantage over its competitors in accommodating one way in which the law can (perhaps) give reasons for action.
Keywords: Normativity, The normativity of law, legal positivism, reasons, practical reasons.
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