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The Place Of Legitimacy In Legal Theory, Dan Priel
The Place Of Legitimacy In Legal Theory, Dan Priel
Dan Priel
In this essay I argue that in order to understand debates in jurisprudence one needs to distinguish clearly between four concepts: validity, content, normativity, and legitimacy. I show that this distinction helps us, first, make sense of fundamental debates in jurisprudence between legal positivists and Dworkin: these should not be understood, as they often are, as debates on the conditions of validity, but rather as debates on the right way of understanding the relationship between these four concepts. I then use this distinction between the four concepts to criticize legal positivism. The positivist account begins with an attempt to explain …
Book Review: Justice In Robes By Ronald Dworkin (2006), Dan Priel
Book Review: Justice In Robes By Ronald Dworkin (2006), Dan Priel
Dan Priel
Since the 1960's Ronald Dworkin has been arguing for a particular account of law that he believed was both explanatorily superior to the one offered by competing theories, and also the basis for normative arguments for producing right answers to legal questions. Justice in Robes collects Dworkin's most recent essays on this subject and thus provides the appropriate opportunity for assessing the legal theory of one of the more influential legal philosophers. In this Review I seek to offer a clearer account than appears in the book itself of Dworkin's project, and in this way offer a measured assessment of …
Towards Classical Legal Positivism, Dan Priel
Towards Classical Legal Positivism, Dan Priel
Dan Priel
Open almost any textbook on jurisprudence and you will find it beginning with a discussion of natural law and legal positivism. Almost without exception one finds in them two claims. First, what sets legal positivism and natural law apart is a difference on the conceptual question of the relationship between law and morality. Natural lawyers believe that law or legality are necessarily connected to morality, whereas legal positivists deny that. The second claim tells a story about the historical development of legal positivism: according to the familiar story the classical legal positivists like Thomas Hobbes and Jeremy Bentham subscribed to …
Towards Classical Legal Positivism, Dan Priel
Towards Classical Legal Positivism, Dan Priel
Dan Priel
Open almost any textbook or jurisprudence and you will find it beginning with a discussion of natural law and legal positivism. What sets them apart, we are told, is a difference on the conceptual question of the relationship between law and morality. Natural lawyers believe that law or legality are necessarily connected to morality, whereas legal positivists deny that. In this essay I challenge this fundamental understanding of the debate. The difference between legal positivism and natural law has to do with a way inquiries about law should be conducted: natural lawyers seek to understand law by relating it to …
Jurisprudence Between Science And The Humanities, Dan Priel
Jurisprudence Between Science And The Humanities, Dan Priel
Dan Priel
For a long time philosophy has been unique among the humanities for seeking closer alliance with the sciences. In this essay I examine the place of science in the context of jurisprudential debates, in particular in the context of the idea known as legal positivism. I argue that historically legal positivism has been advanced by theorists who were also positivists in the sense the term is used in the philosophy of social science, i.e. they were committed to the idea that the explanation of social phenomena should be conducted using similar methods to those used in the natural sciences. I …