By Andrei Marmor
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Extra info for Philosophy of Law
What makes legal normativity unique is the uniqueness of its point of view—the legal point of view. We can set aside the difficulties that such a view raises with respect to morality. Obviously, many philosophers would reject Kelsen’s view that moral reasons for action only apply to those who choose to endorse morality’s basic norm (whatever it may be). Even if Kelsen was quite wrong about this conditional nature of moral imperatives, he may have been right about the law. However, the question we need to press is whether Kelsen succeeded in providing a nonreductive explanation of legal normativity given the fact that his account of legal validity turned out to be reductive after all.
How is it different from Hart’s insistence that sovereignty, just like the role of the umpire in a game, is a role that is constituted by rules? Hart has two related answers. First, he claims that the tools Austin provides would not be sufficient to explain even the simplest form of a legal transition from one person qua sovereign to another. Suppose X is a sovereign in society S, by meeting Austin’s definition; but then X passes away and Y takes over as the legal successor to X, and is now the lawful sovereign in S.
It would be safe to say, however, that all the various versions of American legal realism shared a commitment to the following framework argument:26 (1) Law is, ultimately, what the courts in fact do. (1a) Therefore, to know what the law is, one needs to be able to predict what the courts will in fact do. (2) Legal norms do not provide sufficiently determinate grounds for prediction of what the courts will in fact do. ” A Pure Theory of Law? (3) Therefore, some other type of theory is needed that will enable more accurate predictions of judicial decisions.
Philosophy of Law by Andrei Marmor