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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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Number of downloads: 414

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

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Keywords

common good typology of instrumentalization acts Maciej Próchnicki Toulmin’s model professional ethics of legal advisors Spanish law aesthetics of law Karl Binding judicial review (of constitutionality of statutes) Russian philosophy of law bartłomiej dębski memory law WTO Martin Krygier narrative Karl Popper legal interpretation monkey trial comparative law sanction theory market economy Integrative Theory of Law global constitutionalism conventional act in law idealism libertarianism spokesman of truth participatory judiciary causal theory of meaning societal constitutionalism Dawid Bunikowski criminal law freedom of religion juriscentrism manner of taking into account the expiration of the limitation period legal knowledge judicial election war on terror theory of decision making rationalism law and popular culture limits of juristic power Maciej Zieliński Paul Grice pragmatics Łukasz Mirocha justification deontological ethics post-theology legal moralism

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