An Explanatory Framework for Legal Grounding

Redakcja (Mateusz Pękala) — Wed, 23 Aug 2023 14:55:48 +0000

Bartosz Janik

University of Silesia in Katowice, Poland

English abstract: The objective of this article is to provide an explanatory framework for legal grounding. Grounding, understood in recent years as a metaphysical determination, has proved to be a fruitful object of inquiry for legal theorists trying to explain the thesis about the relationship between social facts and legal facts in metaphysical terms. However, the debate on the use of the notion of grounding in the philosophy of law lacks a concise and precise differentiation of the various assumptions behind grounding that philosophers have recently discussed. This article offers a prospect for analysis of a debate about grounding of legal facts and an interpretation of focal terms in light of recent metaphysical debates.

Keywords: grounding, explanation, philosophy of law, legal facts, social facts

Language: English

Published: Number 2(35)/2023, pp. 34-42.

DOI: https://doi.org/10.36280//AFPiFS.2023.2.34

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Number of downloads: 281

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

Legal Positivism Social Source Thesis and Metaphysical Grounding: Employing Metaphysical Grounding based on Metaphysical Laws

Redakcja — Sat, 14 Dec 2019 14:50:57 +0000

Mgr Szymon Mazurkiewicz

Jagiellonian University in Kraków

Abstract: The core of legal positivism is the so-called social source thesis, which claims that legal facts are determined only by social facts. I examine an interpretation of this thesis that uses metaphysical grounding as an exact relation between legal facts and social facts. I argue that the current interpretation of the social source thesis in terms of metaphysical grounding has significant drawbacks that stem from it being based on the view that metaphysical grounding is a primitive relation. For that reason, the current interpretation is unintelligible and poses problems with explaining the normativity of legal facts. I present two other views on metaphysical grounding: that it holds due to essences of facts and that it holds due to metaphysical laws. I apply the notion that metaphysical grounding holds due to metaphysical laws and argue that in the case of grounding of legal facts in social facts, this metaphysical law is constituted by instrumental rationality. It provides intelligibility to this grounding relation, is able to explain the normative character of legal facts, and is compatible with the general form of explanation.

Keywords: social source thesis, legal facts, metaphysical grounding, metaphysical laws, instrumental rationality

Language: English

Received: 20.06.2019
Accepted: 06.09.2019

Published: Number 2(20)/2019, pp. 5-19.

DOI: https://doi.org/10.36280/AFPiFS.2019.2.5

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Number of downloads: 790

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