Thursday, September 12, 2013

Leiter: Why Legal Positivism (Again)?
Linking to a paper at SSRN
From the abstract
Why is legal positivism the dominant view among legal philosophers? The address begins with a somewhat lengthy methodological preamble, offering reasons to resist the extravagant metaphysical inflation of the purported theoretical virtues of positivism in some recent jurisprudential writing by Dickson and Shapiro, among others. Artifacts do not have essential attributes, not even functional ones. (Leslie Green's partial resistance to my metaphysical deflation in his recent "The Morality in Law" is shown to depend on some confusions about the status of the claim that law is an artifact.) I then suggest that legal positivism has three theoretical virtues counting in its favor. First, if we take seriously the benchmark for theoretical adequacy that Hart gave for his theory - namely, that it capture what the ordinary educated person familiar with a modern municipal legal system understands by the concept of law - that positivism does the best job of accounting for this ordinary understanding. (Particular attention is drawn to Raz's original arguments for legal positivism of this form, as opposed to his perhaps better-known, if more controversial, argument from the nature of authority.) Second, the positivist account of law is the one deployed fruitfully in all the empirical social sciences. Third, the positivist theory does not involve incredible or controversial metaphysical assumptions. The last two theoretical considerations are acknowledged to presuppose naturalism, but I suggest that doing so is unavoidable.
Following the logic of legal positivism you'd have to think Raz has given Palestinians the out of not being obliged to accept the morality of Israeli law or even of the existence of the state. But then…
Joseph Raz and Avishai Margalit,  "National Self-Determination". find it on the web.

just stupid.

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