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Philosophical Foundations of the Nature of Law$
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Wil Waluchow and Stefan Sciaraffa

Print publication date: 2013

Print ISBN-13: 9780199675517

Published to Oxford Scholarship Online: May 2013

DOI: 10.1093/acprof:oso/9780199675517.001.0001

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Legal as a Thick Concept *

Legal as a Thick Concept *

(p.256) (p.257) 11 Legal as a Thick Concept*
Philosophical Foundations of the Nature of Law

David Enoch

Kevin Toh

Oxford University Press

Some features of legal judgments suggest that a descriptivist characterization of them would be apt, whereas some other features invite a normativist characterization. A characterization of legal judgments as those employing thick concepts — i.e., concepts that have both descriptive and normative contents — can accommodate both sets of explananda. More particularly, this chapter proposes that legally valid be construed as a thick concept. This characterization enables us to regiment clearly some frequently discussed but still obscure issues in legal philosophy — including the distinction between internal and external legal statements, the nature of the so-called detached legal statements, and the Kelsenian presupposition of the basic norm — that have direct bearings on the debate about the nature of law. This proposal also infuses legal philosophy with some hitherto neglected questions by placing some legal philosophical concerns within the general philosophical context of the discussion about thick concepts.

Keywords:   legal judgments, thick concepts, legal validity, nature of law

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