A Positivist Route for Explaining How Facts Make Law

Abstract

<jats:p>In “How Facts Make Law” and other recent work, Mark Greenberg argues that legal positivists cannot develop a viable constitutive account of law that meets what he calls the “the rational-relation requirement.” He argues that this gives us reason to reject positivism in favor of antipositivism. In this paper, I argue that Greenberg is wrong: positivists can in fact develop a viable constitutive account of law that meets the rational-relation requirement. I make this argument in two stages. First, I offer an account of the rational-relation requirement. Second, I put forward a viable positivist account of law that I argue meets this requirement. The account that I propose is a version of Scott Shapiro's Planning Theory of Law. The version of Shapiro's account that I propose combines (1) the account of concepts and conceptual analysis put forward by David Chalmers and Frank Jackson with (2) the account of the concept<jats:sc>legal institution</jats:sc>(and its conceptual connections to the concept<jats:sc>legal norm</jats:sc>) that we get from a certain reading of Shapiro's Planning Theory. In addition to providing a compelling response to Greenberg's argument in “How Facts Make Law,” I argue that the explanation for why my response to Greenberg works underscores one of the central problems facing legal antipositivism: namely, its lack of a convincing account of the nature of legal institutions.</jats:p>

Law-Determination as Grounding: A Common Grounding Framework for Jurisprudence

“…Greenberg took it to have. We then conclude this section by defending our stance against the rival conception of rational determination offered by Plunkett (2012). Finally, in section 4 we elucidate the grounding framework for theories about the nature of law previously developed, by providing a ground-theoretic interpretation of Hartian positivism.…”

“…The way we do so is by arguing that, on its best understanding, rational determination turns out to actually be grounding. Interestingly, as we shall see, reaching this conclusion requires taking rational determination to have a wider application than 1 See, for instance, Gizbert-Studnicki (2016), Plunkett (2012), Rosen (2010), and Stavropoulos (2014). 2 An exception is Gizbert-Studnicki (2016), who compares grounding favourably to supervenience and reduction with respect to the ability to play the role of law-determination, and thereby provides indirect support in its favour (see also fn.…”

A Non-Naturalist Account of Law’s Place in Reality

“…b) Which determinants does the relation pick out? As to the first sub-question, I have argued elsewhere (Chilovi & Pavlakos, 2019) that the relation between legal facts and their determinants is better understood as one of metaphysical grounding, a view that seems to be widely shared in the recent literature (Greenberg, 2004;Rosen, 2010;Plunkett 2012). Although answers to the second sub-question about the determinants of legal facts abound, a theoretically interesting dividing line, which coincides with traditional debates, involves the question whether the determinants of law are entirely descriptive or partly moral in kind.…”

On The‐Law Property Ascriptions to the Facts

“…)—also describe all of what I said above by stating that “(iv) The‐law = having/satisfying the standards that play the role posed by (P1…Pn)”; hence, the juridical conformation of any legal system is nothing over and above its purely descriptive conformation. I must clarify two points here: “(iv)” does not state that “the‐law = the thing that play the role posed by (P1…Pn)”; in other words, the‐law property is not equal S, so if you take S as being what David Plunkett () calls “the A facts,” I am not saying that the‐law property is reduced to the A facts. Likewise, if you take (P1…Pn) as being the hypothesis that makes the best sense of our practices regarding the concept of law, “(iv)” does not state that being the‐law equals being (P1…Pn) .…”