Appeals to metaphysics have lately come to ascendancy in analytic legal philosophy. Over the last 20 years or so, a new discourse framework has emerged in analytic legal metaphysics that focusses on the explanatory question of how law is made. By any measure the most influential refinement of this question is to be found in Mark Greenberg's seminal 2004 article How Facts Make Law. This essay tries to exert some pressure on this familiar question by posing the categorial question of (...) what type of entities different theories of law take up as ontologically basic for their inquiry. The essay singles out four exemplary avenues for answering the categorial question. Introducing a categorial instead of explanatory lens is an overdue step in the process of updating the metaphysical toolbox of contemporary analytic theories of law. The categorial question of what kind of entity law is ismeant to complement the explanatory question of how law is made in a way that makes disagreements about the metaphysical-explanatory demands of theories of law more tractable or amenable to principled adjudication. (shrink)

ABSTRACT Most theorists agree that our social order includes a distinctive legal dimension. A fundamental question is that of whether reference to specific legal phenomena always involves a commitment to a particular moral view. Whereas many philosophers advance the ‘positivist’ claim that any correspondence between morality and the law is just a function of political circumstance, natural law theorists insist that law is intrinsically moral. Each school claims the crucial advantage of consistency with our folk concept. Drawing on the notion (...) of dual character concepts, we develop a set of hypotheses about the intuitive relation between a rule’s moral and legal aspects. We then report a set of studies that conflict unexpectedly with the predictions by legal positivists. Intuitively, an evil rule is not a fully-fledged instance of law. (shrink)

A new strategy in philosophy of law appeals to explanatory gap arguments to attack legal positivism. We argue that the strategy faces a dilemma, which derives from there being two available readings of the constraint it places on legal grounding. To this end, we elaborate the most promising ways of spelling out the epistemic constraints governing law-determination, and show that each of the arguments based on them has problems. Throughout the paper, we evaluate a number of explanatory requirements, ultimately with (...) a view to shedding light on the explanatory nature of both grounding in general, and legal grounding in particular. (shrink)