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What Is a Descriptive Legal Theory

17 And, of course, no long intellectual work dealing with law can be expected to be entirely free of normative observations. The problem arises when these make sense in the supposedly conceptual and descriptive main argument. Note also that there are passages where, curiously, Himma seems to continue these relationships between law and morality. Consider, for example, the following: « It is a conceptual truth that law is an institutional artifact used characteristically as a descriptive question of random facts to regulate the behavior of rationally competent subjects who are sometimes willing to do things that are considered undesirable. An institutional normative system that does not contribute marginally to the prevention of such undesirable acts, because the alleged subjects are permanently unwilling to commit such acts, has nothing to do with the reason why they refrain from doing so and is not properly characterized as a legal system; There can be no effective legal regulation of true angels when it comes to undesirable acts – because true angels. are morally infallible, morally blameless, and therefore never inclined to commit such undesirable acts » (Himma 2020: 119-120, emphasis added). In this passage, Himma seems to deduce from the moral infallibility and perfection of angels that they are not inclined to commit socially undesirable acts; But this seems to imply that what is socially undesirable (considered socially undesirable) must also be morally reprehensible. And if it is conceptually necessary for a normative system to be a legal system, to help prevent what is morally wrong, then there is a necessary conceptual link between law and morality. The alternative, of course, is that there is no necessary connection between what is socially undesirable and what is morally wrong – but it is not necessarily true that morally infallible and impeccable beings are never willing to commit socially undesirable acts (or whatever actions are considered as such). Intransitivities of a somewhat different kind are also predicted by the regret theory of Loomes & Sugden (1982, 1987). [16] The guiding principle underlying this proposal is that the assessment of a particular outcome in a given country is essentially a comparative issue. It is determined by regret (or joy) associated with the thought that the available alternative actions would have led to a certain set of alternative outcomes under the same circumstances. In the specific case of binary alternatives, this intuition translates into the following menu-dependent preference feature: 18Alternatively, should we understand by « ultimate » function who is « minimal » so that, whatever law is used, it should be used at least for this minimal purpose? Well, the obvious candidate here is not peacekeeping, but regulation of behavior.

However, Himma dismissed this as too minimal. While the SIU continues to enjoy broad support as a normative model of electoral behaviour (see Section 5 below), it is no longer generally considered descriptively appropriate. A number of significant deviations from his predictions were already noted in the 1950s and early 1960s by Allais (1953a,b) and Ellsberg (1961) and studied in more detail in the 1970s. These observations have led to the development of alternative models whose own predictive consequences have been extensively tested over the past three decades. [3] Normative legal theories, political philosophy, and global moral theories Another important issue concerns the relationship between normative legal theory and other normative theories, in particular political philosophy, ethics, and global moral theories. Normative political philosophy raises questions about the normative justification of the state and the normative principles that determine the objectives and limits of the content of the law. The term ethics can be defined in different ways – but for our purposes in this regard, ethics could be seen as the morality of individual action outside the political sphere. A comprehensive moral theory could include both ethics and normative political philosophy. The field of normative legal theories is the normative evaluation of legal substance and procedures.

Normative theories of the law as a whole could be called « general normative jurisprudence ». There may also be normative theories for specific areas of law – « normative constitutional theory », « normative theory of tort liability », etc. Positive theory as a constraint on normative theory – Another relatively uncontroversial relationship between positive and normative legal theories arises when a positive theory explaining why the law has the form it has is considered a limitation of normative theory. For example, public choice theory makes certain predictions about how legislators will act in response to various incentives. Some legal rules that might be justified by an ideal normative legal theory may be considered « unrealistic » in light of positive theory. In such cases, positive legal theory offers limitations that limit the possibilities of normative theory. Positive legal theory Type 2: Explanatory theories – The second type of legal theory to which the label « positive » is applied is explanatory theories – theories about why the law is what it is. For example, a very simple Marxist theory might claim that the content of the law can be better explained by the interests of the ruling class. Some legal economists have attempted to argue that common law rules are effective because there is « evolving pressure » on ineffective legal rules. What I call an « explanatory theory » is sometimes called a « causal theory. » (2) The existence of a rule of recognition is a conceptually necessary condition for the existence of a legal system. (7) Any legal system is therefore based on a form of coercion. Coercion is therefore a conceptually necessary condition for the existence of legal systems.42 15Himma points out that conceptual functions imply a kind of (at least presumed) normativity: functional normativity.

But this is not synonymous with moral normativity.18 This is true to the extent possible, but it is not sufficient to satisfy MLP in its examination of the conceptual function of law, since MLP concerns the normative in general and not only the moral. Rather, Himma`s potential claim to satisfy the MLP lies in the fact that peacekeeping is what is generally regarded as a function of law.19 It describes only one social fact: the fact that people think the law is. The problem comes from the reasons he uses to justify this (empirical?) description.37 The general notion of artifacts as defined by their function, where function is understood as the satisfaction of a particular need, may also raise doubts: What exactly does Himma mean by « need » in this context? Isn`t it true that we have done some things (artifacts) that we don`t « really need »? Fulfilling a certain function and satisfying a certain need cannot be synonymous. Critical legal theory: trying to define how existing laws fail to achieve an external goal?? 13Although Himma views his work as an exercise in descriptive conceptual analysis, I doubt that his examination of the relationship between law and constraint is sufficient (or compatible with) MLP. 28It is important to note two things here: a) From this point of view, coercion does not refer to unofficial behavior, as in Himma`s conception, but to official behavior; (b) According to this argument, coercion is not exactly a necessary part of the law, but a necessary condition for its existence. As Himma puts it, coercive sanctions that support a recognition rule are informal in the sense that they are not authorized by the recognition rule or any other legal norm.43 Perhaps (but only perhaps) this is all we can say in quite conceptual terms about a necessary link between law and coercion. Despite a long tradition of applying rational choice theories to various philosophical problems,[21] the question of the potential relevance of descriptive decision theory to its normative counterpart does not seem to have aroused much interest in the philosophical community.