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Legal Positivism, Natural Law, and Normativity
Ligon, Jack P.
Ligon, Jack P.
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In this thesis, I discuss and evaluate five theories of jurisprudence explaining how each one answers two central questions. The first, the Grounding Question, asks what it is that makes something a law. The second question, the Normative Question, asks why it is that laws ought to be followed. I use these questions to establish four desiderata for a theory of jurisprudence: a satisfactory theory must answer the Grounding Question and explain its answer, and it must do the same for the Normative Question. The five theories fall into two historically opposed categorizations: legal positivism and natural law theory. In section 2, I explain three positivist and two natural law theories, highlighting how each answers the central questions. In section 3, I discuss two more desiderata that help to explain some of the motivations for holding each view. Finally, in section 4, I compare each theory’s answer to the central questions. I find that while each theory has a satisfactory answer to the Grounding Question, their answers to the Normative Question differ in strength. While the views have historically been opposed, I find that the strongest version of positivism and natural law theory are “inclusive” legal positivism and “weak” natural law theory, compatible theories that bear striking resemblances to one another.
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2021-01-01
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