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

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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Filed Under: Articles Tagged With: instrumental rationality, legal facts, metaphysical grounding, metaphysical laws, social source thesis

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Keywords

social choice theory cognitive dissonance interpretationism Przemysław Kaczmarek moral judgement provision of the law general clause subjectivity/structure grammatical problems Hart skepticism personal dimension in legal education animals in dubio contra reo arbitrariness Constitution of the Republic of Poland therapy concept theory of decision making discrimination constitutional courts American legal realism rule of law theory of deliberative democracy comparative law terrorist attack sovereignty procedural acts personal traits moral responsibility limitation of claims Adam Szot legal interpretation hermeneutic universalism constitutional awareness narrative disagreement social policy contract law Russian theory of law law as a border Maciej Pichlak legal certainty Arrow’s paradox institutional critique memory laws crisis of the rule of law conflict resolution Anscombe realistic utopia legal community

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