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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

administration of justice Butler open society aretaic theory ombudsman institutions rule of law cognitive dissonance politics of memory institutional critique civic participation Robert Audi religious pluralism crisis of the rule-of-law state scholarly interpretation irrational incoherence of punishments legal advisors state without a name copyright test of a reasonable sceptic law beyond statutory law close relationships metaphysical realism Herbert Hart universalist religion popular constitutionalism theory of meaning TRIPS professional self-governments procedural acts prevention public participation human dignity conflict resolution popular culture situationist and normativist concepts nonfactualism to exist Paulus Vladimiri naturalistic ethics philosophy of dialogue legal syllogism interpretationism virtue jurisprudence historicity of understanding normative theories of legal interpretation health care Wojciech Engelking collective memories dealing with the past

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