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How Can ‘Positivism’ Account for Legal Adjudicative Duty?

Taggart, CP (2012) How Can ‘Positivism’ Account for Legal Adjudicative Duty? Oxford Journal of Legal Studies, 33 (1). pp. 169-196.

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Abstract

One aspiration of an analytic jurisprudential theory is to provide an account of how legal obligations arise, including the legal obligation of judges to apply only legally valid norms when adjudicating cases. Also, any fully adequate theory should enable a solution to a ‘chicken-egg’ puzzle regarding legal authority: legal authority can exist only in virtue of rules that authorize it, but such rules require a legal authority as their source. Which came first? This article argues that it is difficult to see how a particular type of positivist theory (featuring a fundamental norm that plays certain roles) can solve the puzzle and also account for the aforementioned adjudicative duty. The challenge can be framed in terms of the need to be able to derive a legal ‘ought’ (applying to courts) from only ‘is’-statements expressing social facts, where the requisite derivation cannot rely on what John Searle has called ‘institutional facts’.

Item Type: Article
Subjects : Law
Divisions : Faculty of Arts and Social Sciences > School of Law
Authors :
AuthorsEmailORCID
Taggart, CPUNSPECIFIEDUNSPECIFIED
Date : 28 September 2012
Identification Number : https://doi.org/10.1093/ojls/gqs021
Copyright Disclaimer : The Author 2012. Published by Oxford University Press. All rights reserved.
Uncontrolled Keywords : positivism, authority, obligation
Depositing User : Symplectic Elements
Date Deposited : 09 Sep 2016 17:50
Last Modified : 09 Sep 2016 17:50
URI: http://epubs.surrey.ac.uk/id/eprint/812091

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