Legal Principles, Law, and Tradition
33 Pages Posted: 22 Sep 2020 Last revised: 3 Nov 2022
Date Written: September 22, 2020
Legal reasoning and legal discourse take place within historical traditions that develop over time. Moreover, law is characterized by the past’s authoritative presence. This observation vindicates the basic positivist insight that law is ultimately grounded in social facts. Yet these social facts include the history of the legal tradition, the work and shared understanding of legal scholars, and the ostensibly moral reflections of legal participants. These aspects have been mistakenly left aside by legal positivists and their usual focus on coercive institutions.
I use the Hart-Dworkin debate as a starting point for reclaiming the notion of law as a historically grounded practice. The debate highlights that philosophical reflection about law becomes impoverished without history. A closer look at history shows that both Dworkin and Hart were partially right. As Dworkin argued, law is not only a matter of purely source-based legal rules, but also incorporates principles with weight and a less straightforward connection to social facts. However, the ubiquity of legal principles and their operation show that a socially grounded conception of law, as the one defended by legal positivism, is entirely consistent with the existence of legal principles.
At a deeper level, positivism is entirely consistent with moral argument taking place within legal institutions. But realizing this requires seeing law as a traditional and backward-looking practice that is partially constituted by the work of legal scholars, that depends on genealogy, and that constitutes a depository of human societies’ moral reflection. It also requires questioning the usual picture of morality in contemporary jurisprudence. Taking the historicity of law seriously, the Essay focuses on recent jurisprudential debates regarding the rule of recognition and eliminativism. While law is not a model of rules that rests on a simple master criterion of legal validity, and legal reasoning is not discontinuous with moral reflection, it nevertheless is, as Hart argued, ultimately grounded in social facts.
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