SOPhiA 2018

Salzburgiense Concilium Omnibus Philosophis Analyticis

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Programme - Talk

Metaphysical Grounding and Positivist Theory of Law -- How Social Facts Can Ground Legal Facts
(Political Philosophy & Philosophy of Law, English)

The main thesis of legal positivism is the social source thesis (SST) which states that legal facts are ultimately determined by social facts alone (Shapiro, 2011). Whereas the relata of this thesis (social facts and legal facts) have been widely discussed, the relation of determination remains highly unclear. Some try to apply metaphysical grounding and claim that SST can me understood as legal facts are (fully) grounded in social facts (Plunkett, 2012; Gizbert-Studnicki, 2016). However, such a claim must face a problem of how social facts, descriptive in their character, can ground legal facts, which are normative.

The aim of this presentation is to study whether social facts can ground legal facts with strong emphasis on analysis of metaphysical grounding itself. Firstly, there will be presented some detailed aspects of SST, also with comparison to non-positivism theses. Secondly, I will shortly present the relation of metaphysical grounding, especially discussion on grounding and necessity, as well primitive, essentialist and metaphysical-law versions of grounding. Next, there will be analysed normative grounding, which is grounding relation that grounds normative facts in descriptive facts (Vayrynen, 2013; Leary, 2017).

The third part will involve applying considerations on grounding into SST. I claim that that social facts can ground legal facts only with another ground, which must be some normative fact since it is impossible to fully ground normative facts on descriptive facts alone. However, in the case of SST it cannot be a moral fact as (1) it would violate SST and (2) this moral-normative fact would need another moral-normative fact to be a moral-normative fact etc., which leads into infinite regress (cf. Vayrynen, 2013). For that reason my thesis is that the best solution is to apply metaphysical-law version of grounding, where A grounds B holds because there is such a metaphysical law that A grounds B (Leary, 2017). In the context of applying grounding into SST this metaphysical law must be a principle connecting descriptive and normative sphere. After short study of some possible principles (Kant's Categorical Imperative, Habermas's Discourse-Principle (Pavlakos, 2017)). I will argue that such principle is instrumental rationality, which is able to (1) give normative character to legal facts and (2) is not explained via other normative facts, what does not lead to infinite regress.

Chair: Jan Buran
Time: 15:20-15:50, 14 September 2018 (Friday)
Location: SR 1.007

Szymon Mazurkiewicz 
(Jagiellonian University, Cracow, Poland)

PhD student in Law and MA student in philosohy on Jagiellonian University, Cracow working in the area of philosophy of law, especially analytic legal theory and philosophy of human rights. I focus on studying (meta)metpahysical interpretation of many legal theory claims with emphasis of applying supervenience and metaphysical grounding.

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