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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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The Normative Fallacy Regarding Law’s Authority *

The Normative Fallacy Regarding Law’s Authority *

(p.75) 4 The Normative Fallacy Regarding Law’s Authority*
Philosophical Foundations of the Nature of Law

Arie Rosen

Oxford University Press

This chapter explores the idea of authority and its significance to descriptive legal philosophy. It begins with a critique of Raz's theory of de facto authority, claiming that his theory involves a normative fallacy — that is, an illicit move from statements in moral theory to statements about social and political facts. Building on this critique, the chapter moves on to discuss law's de facto authority, whether such authority is a necessary feature of law, and what its relevance is to the core questions of legal philosophy. The chapter suggests that in order to avoid the normative fallacy, we should move away from analyses of the concept of law that are based on the theorist's own moral theory, and take a more descriptive approach in explaining law's de facto authority and the way it affects the idea of law.

Keywords:   Raz, authority, normative fallacy, de facto, legitimate, rightful, practical matrix

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