Ratio Juris 22 (3):359-394 (2009)

Abstract
In this essay, I characterize the original intervention that became Inclusive Legal Positivism, defend it against a range of powerful objections, explain its contribution to jurisprudence, and display its limitations and its modest jurisprudential significance. I also show how in its original formulations ILP depends on three notions that are either mistaken or inessential to law: the separability thesis, the rule of recognition, and the idea of criteria of legality. The first is false and is in event inessential to legal positivism. The second is inessential to legal positivism. The third is likely inessential to law. I then characterize the central claim of ILP in a way that relies on none of these: ILP is the claim that necessarily social facts determine the determinants of legal content. I show that ILP so conceived leaves the central debates in law largely untouched. I suggest how the most fundamental of these—the question of the normativity of law—at least can be usefully addressed. The essay closes by suggesting that even though one can distinguish the social from the normative dimensions of law, a theory of the nature of law is necessarily an account of the relationship between the two: It is a theory either of the difference that certain distinctive social facts make in normative space, or it is an account of the distinctive normative difference that law makes, and the social and other facts that are necessary to explain that difference. One can distinguish between but one cannot separate the social from the normative aspects of legality.
Keywords No keywords specified (fix it)
Categories (categorize this paper)
DOI 10.1111/j.1467-9337.2009.00430.x
Options
Edit this record
Mark as duplicate
Export citation
Find it on Scholar
Request removal from index
Revision history

Download options

PhilArchive copy


Upload a copy of this paper     Check publisher's policy     Papers currently archived: 70,265
External links

Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
Through your library

References found in this work BETA

Law’s Empire.Ronald Dworkin - 1986 - Harvard University Press.
Authority and Justification.Joseph Raz - 1985 - Philosophy and Public Affairs 14 (1):3-29.
Reason-Giving and the Law.David Enoch - 2011 - In Leslie Green & Brian Leiter (eds.), Oxford Studies in Philosophy of Law. Oxford University Press.

View all 20 references / Add more references

Citations of this work BETA

Grounding-based formulations of legal positivism.Samuele Chilovi - 2020 - Philosophical Studies 177 (11):3283-3302.
Legal Obligation and Reasons.Christopher Essert - 2013 - Legal Theory 19 (1):63-88.
Phenomenology and Time: Husserl, Derrida, Zahavi.Jared Gee - 2014 - Philosophy in Practice 8 (Spring):77-90.

Add more citations

Similar books and articles

Analytics

Added to PP index
2009-08-27

Total views
168 ( #69,864 of 2,507,709 )

Recent downloads (6 months)
2 ( #277,114 of 2,507,709 )

How can I increase my downloads?

Downloads

My notes