Hartian Positivism and Normative Facts: How Facts Make Law Ii
EXPLORING LAW'S EMPIRE, Scott Hershovitz, ed., Oxford University Press, Forthcoming
41 Pages Posted: 3 Mar 2006
In this paper, I deploy an argument that I have developed in a number of recent papers to show that the most influential version of legal positivism - that associated with H.L.A. Hart - fails. The argument's engine is a requirement that a constitutive account of legal facts must meet. According to this rational-relation requirement, it is not enough for a constitutive account of legal facts to specify non-legal facts that modally determine the legal facts. The constitutive determinants of legal facts must provide reasons for the obtaining of the legal facts (in a sense of "reason" that I develop). I show that the Hartian account is unable to meet this requirement. That officials accept a rule of recognition does not by itself constitute a reason why the standards specified in that rule are part of the law of the community. I argue that it is false that understanding the explanatory significance of officials' acceptance of a rule is part of our reflective understanding of the nature of law.
A second project of the paper is to respond to a family of objections that challenge me to explain why normative facts and descriptive facts together are better placed to provide reasons for legal facts than descriptive facts alone. A unifying theme of the objections is that explanations have to stop somewhere; descriptive facts, it is suggested, are no worse a stopping place than normative facts.
The paper also spells out a consequence of the rational-relation requirement: if an account of what, at the most basic level, determines legal facts is true in any possible legal system, it is true in all possible legal systems. For example, if a Hartian account of legal facts is true in any possible legal system, it is true in all possible legal systems. I use this all-or-nothing result in my critique of a Hartian account, but the result is of interest in its own right.
Keywords: philosophy of law, legal positivism, Hart, law and morality, law and reasons, normative facts, normativity, practices, rules, reasons, norms, morality, acceptance, rule of recognition, moral truths, possible legal systems, Lewis Carroll, regress
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