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Toh on the Social Fact Thesis

By Lawrence Solum

Kevin Toh (University of Texas Law School) has posted An Argument Against the Social Fact Thesis (and Some Additional Preliminary Steps Towards a New Conception of Legal Positivism) on SSRN. Here is the abstract:

According to the view almost universally accepted by legal philosophers, what distinguishes legal positivism from other legal theories is its commitment to the so-called social fact thesis. According to that thesis, the existence of a law, or the legal validity of a norm, is ultimately a matter of some facts about the psychology and/or behavior of a group of people. I argue in this paper that once we take seriously the normative nature of internal legal judgments, we come to realize that the social fact thesis (at least as commonly formulated) is incorrect. In making internal legal judgments, we commit to act according to some norms or principles. It follows that the existence of a law or the legal validity of a norm is ultimately a normative, rather than a factual, matter. Instead of concluding that legal positivism should be rejected in favor of some alternative legal theory, I conclude that the standard way of conceiving legal positivism should be rejected in favor of a more plausible conception.

Highly recommended!

Full post as published by Legal Theory Blog on August 03, 2010 (boomark / email).