Hartian Positivism and Normative Facts: How Facts Make Law II

Law-Determination as Grounding: A Common Grounding Framework for Jurisprudence

“…In due course (sect. 4), we'll elaborate on these notions, and will explain how they may be exploited by Hartian positivists to address a challenge that Greenberg (2004) raises against simple positivist accounts of law.…”

“…1), a sustained defence of it has yet to be provided. 13 In the next two sections we aim to do just that, while also defending LDG from worries that may arise from Greenberg's (2004) influential argument that law-determination is rational determination.…”

“…Lastly, hyperintensionality. Greenberg (2004) noticed that, under the assumption that the basic moral facts are necessary, framing the dispute between positivism and anti-positivism in terms of supervenience arguably meets with serious difficulties. For if positivism is understood as the view that legal facts supervene on social facts alone, and anti-positivism as claiming that they supervene on social and moral facts taken together, their claims will be true under exactly the same conditions.…”

“…Perhaps even more interestingly, Greenberg (2004) also argued that because the nature of law-determination is a certain way, legal positivism is open to objections from which its anti-positivist rivals are immune. Greenberg's claims are both interesting on their own and possibly interwoven.…”

“…to better explicate our framework by looking at one specific application, and to use it for evaluating Greenberg's (2004) contention that law being rationally determined poses a special problem for legal positivism. In this respect, we will see how certain ground-theoretic notions bear on the way Hartian positivists might be able to answer Greenberg's powerful and influential challenge.…”