Ontology and Reason Giving in Law

摘要: John Gardner has noted that legal positivism is more a theory of legal validity than it is a theory about law’s nature. 1 This is true in that one can be a legal positivist and hold a variety of different theories about law’s nature, but not to the extent that ‘anything goes’ ontologically speaking. Rather, it seems fairly difficult to be a legal positivist and not say that the law is a kind of social fact. That being said, however, there are a variety of ways of creating social facts so there is some room for disagreement when it comes to the nature of law within the wide umbrella of legal positivism. If our focus is legal validity, then we may not have too much reason to wade into these deeper metaphysical waters. However, I believe that legal positivism has a challenge that is not (as) present in other theories of law: the problem of explaining law’s normativity. I contend that one of the best hopes for meeting this challenge is to be found in getting more clarity about what it is that yields these special social facts, although I remain open to the possibility that the challenge can also be met in other ways. Let us first get a bit more clarity on the challenge itself, then we will see how settling the metaphysical questions about law can help to meet the challenge, and then I can suggest how my preferred answer to the metaphysical questions meets the challenge.