Legal Thought and Philosophy

Legal Thought and Philosophy

What Legal Scholarship is About

Bert van Roermund

Legal Thought and Philosophy clarifies background questions in legal research projects, such as the relationship between law and justice, law and politics, law and knowledge, facts and norms, normativity and validity, constituent and constitutional power, and rule and context. It provides advanced students in law and philosophy with an account of legal thinking that combines analytical and phenomenological insights.

Chapter 4: Legal knowledge and legal doctrine: validity of law

Bert van Roermund

Subjects: law - academic, legal philosophy, legal theory, research methods in law, research methods, research methods in law

Extract

I have been investigating how the binding character of law could be accounted for, and what follows from that with regard to the specific way in which law comes into being and is sustained, namely by authoritative decision-making, enforced by sovereign power. All this I called the positive character of law. Now I want to embark on a second mode of appearance of positive law in modern society, namely as an object of theoretical knowledge. I would like to ask what follows from the account given above for what we mean by knowledge of positive law? This question evolves directly from the previous chapter, where I mounted the argument that law itself is a mode of knowledge, namely practical knowledge as exhibited by authority. I pointed out that such ‘knowing how’ with regard to ending or precluding major conflict in society is not necessarily explicit. It may also remain (partly) implicit, tacit, and embodied in those who take authoritative decisions. But then I argued that law has several ways to enhance its authority. One of them is precisely by posing as an object of theoretical, in particular scholarly, knowledge. Rather than being dependent merely on the sovereign status of the agent(s) making law, it may sustain its claim by seeing to it that it can be described, explained, and predicted. There are at least two reasons why this enhances authority. One is an argument from effectiveness: if law can be known, its norms can be interiorised by legal subjects, so that they can consider complying with it without authoritative intervention.

You are not authenticated to view the full text of this chapter or article.

Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.

Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.

Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.

Further information