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The place of legitimacy in legal theory
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Priel, Dan (2010) The place of legitimacy in legal theory. Working Paper. Coventry: Department of Law, University of Warwick. Warwick School of Law Research Paper Series (Number 2010/04).
An open access version can be found in:
Official URL: http://ssrn.com/abstract=1566825
Abstract
In this essay I argue that to understand debates in jurisprudence one needs to distinguish clearly between four concepts: validity, content, normativity, and legitimacy. More specifically I show that debates between legal positivists and Dworkin should be understood not, as it is often said, as debates on the conditions of validity, but rather as debates on the right way of understanding the relationship between these four concepts. After presenting the two different ways in which legal positivists and Dworkin understand this relationship, I argue that the Dworkinian approach is superior to the positivist one. The positivist account begins with an attempt to explain the conditions of validity and to leave the question of assessment of valid legal norms to the second stage of inquiry. But though appealing, I argue that the notion of validity cannot be given sense outside a preliminary consideration of legitimacy.
Item Type: | Working or Discussion Paper (Working Paper) | ||||
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Divisions: | Faculty of Social Sciences > School of Law | ||||
Series Name: | Warwick School of Law Research Paper Series | ||||
Publisher: | Department of Law, University of Warwick | ||||
Place of Publication: | Coventry | ||||
Official Date: | 8 March 2010 | ||||
Dates: |
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Number: | Number 2010/04 | ||||
Number of Pages: | 33 | ||||
Status: | Peer Reviewed | ||||
Publication Status: | Published | ||||
Access rights to Published version: | Restricted or Subscription Access | ||||
Open Access Version: |
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