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Exploring Law's EmpireThe Jurisprudence of Ronald Dworkin$
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Scott Hershovitz

Print publication date: 2008

Print ISBN-13: 9780199546145

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199546145.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 18 June 2021

How Facts Make Law

How Facts Make Law

Chapter:
(p.225) 10 How Facts Make Law
Source:
Exploring Law's Empire
Author(s):

Mark Greenberg (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199546145.003.0011

This chapter offers a new argument against the legal positivist view that non-normative social facts can themselves determine the content of the law. It is argued that the nature of the determination relation in law is rational determination: the contribution of law-determining practices to the content of the law must be based on reasons. That is why it must be possible in principle to explain what makes the law have the content that it does. It follows that non-normative facts about statutes, judicial decisions, and other practices cannot themselves determine the content of the law. A full account must appeal to considerations independent of the practices that determine the relevance of the practices to the content of the law. Normative facts are the best candidates.

Keywords:   legal positivism, law and morality, law and reasons, normativity

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