Abstract
Much controversy has emerged on the demarcation between legal positivism and non-legal positivism with some authors calling for a ban on the -as they see it- nonsensical labelling of legal philosophical debates. We agree with these critics; simplistic labelling cannot replace the work of sophisticated and sound argumentation. In this paper we do not use the term ‘legal positivism’ as a simplistic label but identify a specific position which we consider to be the most appealing and plausible view on legal positivism. This is the view advocated by Gardner in his paper 'Legal Positivism: 5½ Myths’ (Gardner 2001, 199), where he carefully scrutinises the most convincing and unifying postulates of legal positivism, which he calls “the thin view”. The study shows that this thin view presupposes an empirical conception of action that is untenable and implausible since it makes acts of engagement with the law unintelligible to an observer of such acts. The paper is divided into six sections. §1 aims to give an accurate and charitable explanation of Gardner’s thin view of legal positivism, which includes the possibility of recognising actions of engagement with the law that are inert. Section 2 sets the stage for the critical discussion using the example of a fictional country called DYSTOPIA where King Positus promulgates law with the aim of causing chaos in the activities of the citizens. The question we ask is, ‘What enables an imaginary observer to recognise what Gardner calls ‘acts of engagement’ with the law? In order to provide a plausible answer to this question we argue in sections 3 and 4 both that Gardner’s thin conception of legal positivism presupposes an empirical view of human action and that the sound conception of human action cannot be an empirical one. We use what we call Anscombe’s ‘institutional transparency thesis’ defended in ‘On Brute Facts’ (Anscombe 1958, 69) to show that the intelligibility of human action presupposes an institutional context but does not entail a description of that context. In §4 we stay with the example of DYSTOPIA to show that an imaginary observer cannot know whether or not there is a legal system in DYSTOPIA unless he/she understands the purpose of an institution that has already been learned within an institutional context. This conception of action is purposeful as opposed to empirical. §5 argues that the paradigm or central-case methodology, as opposed to the necessary and/or sufficient conditions methodology, used to understand social practices, including law, has at its centre the non-empirical view that human action and its purpose is given rather than discovered. Through this indirect argumentative strategy one myth of classical natural law is therefore dispelled. We argue that classical natural law does not aim to discover through moral facts or moral ideals the suitable ends to the kind of creatures we are, because this is not how ends participate in our practical reasoning and actions. On the contrary, ends are already given and our laws, games, ways of loving, thinking, enjoying and living our lives all aim at better understanding these given ends.