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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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Hartian Positivism and Normative Facts: How Facts Make Law II

Hartian Positivism and Normative Facts: How Facts Make Law II

Chapter:
(p.265) 11 Hartian Positivism and Normative Facts: How Facts Make Law II
Source:
Exploring Law's Empire
Author(s):

Mark Greenberg (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199546145.003.0012

This chapter argues 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. The chapter shows 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. It is argued 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.

Keywords:   philosophy of law, legal positivism, Hart, law and morality, law and reasons, normative facts, normativity

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