Norm and Nature: The Movements of Legal Thought

By Roger A. Shiner | Go to book overview

5
THE POINT OF VIEW OF LEGAL THEORY

1. DETACHED LEGAL STATEMENTS

The objection to simple positivism's conception of the point of view of legal theory was that it confined the theorist to the 'external point of view' to law, and thus could not allow the theorist to meet a constraint upon any adequate legal theory that the theory reproduce the way in which laws function in the lives of those who have the internal point of view to law. Let us call this constraint 'the reproduction demand'. Sophisticated positivism offered two devices to repair this deficiency--the notion of the 'moderate point of view' and the notion of the 'detached legal statement'. One who adopts the moderate point of view has the proper cognitive understanding of the legal system in question, and 'a full appreciation of, but no necessary sharing in, the volitional element'.1 Such a one is therefore able to inform others of their obligations (for example) under the system: thus the point of view meets the reproduction demand. Yet such a one does not share the volitional commitment to the norms which is the mark of those who have the internal point of view. Similarly, one who can make correct detached legal statements about the obligations of others under some system of norms also meets the reproduction demand without having the same normative commitment as those who have the internal point of view. In this section, we will consider whether sophisticated positivism can indeed meet the reproduction demand by these devices.

Let us return to Raz's account of detached legal statements, and look more closely at its theoretical commitments:

____________________
1
Cf. MacCormick, H. L. A. Hart, 38.

-137-

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Norm and Nature: The Movements of Legal Thought
Table of contents

Table of contents

  • Clarendon Law Series I
  • Clarendon Law Series II
  • Title Page III
  • Contents vii
  • Acknowledgements xi
  • Introduction 1
  • Part I - Simple Positivism 17
  • 1 - Simple Positivism 19
  • Part II - Sophisticated Positivism 41
  • 2 - Sophisticated Positivism 43
  • Part III - Anti-Positivism 101
  • 3 - Reasons for Action 103
  • 4 - Law and Authority 122
  • 5 - The Point of View of Legal Theory 137
  • 6 - The Acceptance of Law 160
  • 7 - Principle and Discretion 184
  • 8 - Interpretation and Semantics 207
  • 9 - Law and the Common Good 238
  • 10 - Anti-Positivism's Conclusions 261
  • Part IV - Beyond Positivism An Anti-Positivism 271
  • 11 - The Movements of Legal Thought 273
  • 12 - Compatibilism 284
  • 13 - The Concept of Law 308
  • Selected Bibliography 327
  • Index 337
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