Legal Positivism and the Objectivity of Law

Annalisi e Diritto, Vol. 253, pp. 253-267, 2004

15 Pages Posted: 19 Jul 2006

Abstract

In this article, I maintain that legal positivism leaves some room for the idea of objectivity in the determination of the law, though not as much as one might think. More specifically, I maintain that on a legal positivist analysis we can attain legal objectivity at the level of the sources of law, though not at the level of interpretation and application of the law. The reason, I argue, is (i) that the identification of the legal raw material at the level of the sources of law is a purely factual matter, whereas the interpretation and application of this raw material often involves moral reasoning; and (ii) that reasoning about factual matters can be, and usually is, objective, whereas it seems that moral reasoning cannot be. This means, inter alia, that I reject the notion - entertained by Joseph Raz, among others - that the so-called strong social thesis applies to the level of interpretation and application of the law as well as to the level of the sources of law. I begin by introducing the idea of legal objectivity, suggesting that it should be of interest to anyone who believes that the judge has a duty to judge in accordance with the law (Section 2). I then briefly consider the issues of linguistic indeterminacy and legal contradictions and explain why I do not discuss those threats to legal objectivity in this article (Section 3). Having done that, I introduce the theory of legal positivism, giving special consideration to the distinction between the level of the sources of law and the level of interpretation and application of the law (Section 4). I proceed to argue, first, that as a contingent matter of fact moral reasoning is often involved at the latter level because ranking the interpretive arguments as well as determining the ratio decidendi of a case often involve moral reasoning (Sections 5-6), and, second, that it seems that moral reasoning cannot be objective (Section 7). I conclude the article with a comment on Andrei Marmor's analysis of the problem of legal positivism and the objectivity of law (Section 8) and the significance of objectivity at the level of the sources of law (Section 9)

Keywords: Legal positivism, Objectivity of Law, statutory interpretation, moral objectivity

Suggested Citation

Spaak, Torben, Legal Positivism and the Objectivity of Law. Annalisi e Diritto, Vol. 253, pp. 253-267, 2004. Available at SSRN: https://ssrn.com/abstract=917422

Torben Spaak (Contact Author)

Stockholm University ( email )

S-106 91 Stockholm
Sweden
46 8 16 45 89 (Phone)
46 8 612 41 09 (Fax)

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