Hume’s Law that one cannot derive an “ought” from an “is” has often been deemed to bear a significance that extends far beyond logic. Repeatedly, it has been invoked as posing a serious threat to views about normativity: naturalism in metaethics and positivism in jurisprudence. Yet in recent years, a puzzling asymmetry has emerged: while the view that Hume’s Law threatens naturalism has largely been abandoned (due mostly to Pigden’s work, see e.g. Pigden 1989), the thought that Hume’s Law is (...) a serious challenge to positivism has only grown in prominence. Our main aim is to establish that Hume’s Law is not a threat to positivism or naturalism. First, we connect extensive, but unfortunately siloed, discussions of this issue. Second, we show that Hume’s Law is not a serious threat to naturalism or positivism, for the gap between logic and such theses is very hard to bridge in a way that would make Hume’s Law able to bear this significance. Finally, we emphasize an implication of our discussion: it undermines one of the main “dialectical tributaries” in jurisprudence (Toh 2018). (shrink)

In this paper, I advance a lesser known counterfactual principle of grounding in a new kind of way by appealing to properties and the work they do. I then show that this new way of arguing for this principle is superior to another way, describe some of the work this principle can do, defend my use of this principle, and conclude with remarks on why principles like it are needed.

A survey of the connection between grounding and modality, in particular supervenience. The survey explores three possible connections between grounding and supervenience: (1) supervenience can be analyzed in terms of grounding, (2) grounded facts supervene on their grounds, and (3) grounding and supervenience overlap in their theoretical roles.

Sample chapter from H. Asgeirsson, The Nature and Value of Vagueness in the Law (Hart Publishing, 2020), in which I present and partially defend a version of what has come to be called the communicative-content theory of law. Book abstract: Lawmaking is – paradigmatically – a type of speech act: people make law by saying things. It is natural to think, therefore, that the content of the law is determined by what lawmakers communicate. However, what they communicate is sometimes vague (...) and, even when it is clear, the content itself is sometimes vague. The monograph examines the nature and consequences of these two linguistic sources of indeterminacy in the law with the aim of providing plausible answers to three related questions: In virtue of what is the law vague? What might be good about vague law? How should courts resolve cases of vagueness? (shrink)

ABSTRACT This essay has three goals. The first is to introduce the notion of fundamentality and to argue that physicalism can usefully be conceived of as a thesis about fundamentality. The second is to argue for the advantages of fundamentality physicalism over modal formulations and that fundamentality physicalism is what many who endorse modal formulations of physicalism had in mind all along. Third, I describe what I take to be the main obstacle for a fundamentality-oriented formulation of physicalism: ‘the problem (...) of abstracta’, which asks how physical can accommodate phenomena such as mathematics and universals, and which modal formulations do not face. I canvas three solutions: the inapt for ground solution, the concrete restriction, and the contingency restriction. (shrink)

Law being a derivative feature of reality, it exists in virtue of more fundamental things, upon which it depends. This raises the question of what is the relation of dependence that holds between law and its more basic determinants. The primary aim of this paper is to argue that grounding is that relation. We first make a positive case for this claim, and then we defend it from the potential objection that the relevant relation is rather rational determination (Greenberg 2004, (...) 2006). Against this challenge, we argue that the apparent objection is really no objection, for on its best understanding, rational determination turns out to actually be grounding. Finally, we clarify the framework for theories on law-determination that results from embracing our view; by way of illustration, we offer a ground-theoretic interpretation of Hartian positivism, and show how it can defuse an influential challenge to simple positivist accounts 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)

What grounds facts of ground? Some metaphysicians invoke fundamental grounding laws to answer this question. These are general principles that link grounded facts to their grounds. The main business of this paper is to advance the debate about the metaphysics of grounding laws by exploring the prospects of a plausible yet underexplored minimalist account, one which is structurally analogous to a familiar Humean conception of natural laws. In the positive part of this paper, I articulate such a novel view and (...) argue for its merits. The minimalist account shuns essences and takes laws to be unmysterious elite regularities. Therefore, it is a promising alternative for theorists of ground who spurn the acceptance of essentialism about the grounding laws but think that these are needed in our theorizing. In the negative part, I argue that widely accepted principles of ground, coupled with the tenets of minimalism, jeopardize the fundamentality of the grounding laws. I discuss two immediately available and prima facie appealing strategies to evade this threat. However, I show that both have undesirable theoretical costs. I conclude by casting doubts on whether the benefits of a minimalist account of fundamental grounding laws outweigh such costs. (shrink)

The goal of this paper is to provide an accurate grounding-based formulation of positivism in the philosophy of law. I start off by discussing some simple formulations, based on the ideas that social facts are always either full or partial grounds of legal facts. I then raise a number of objections against these definitions: the full grounding proposal rules out possibilities that are compatible with positivism; the partial grounding proposal fails, on its own, to vindicate the distinctive role that is (...) played by social facts within positivist accounts of law. Then, I present a more adequate and insightful formulation capable of solving their problems, which crucially relies on a robust notion of a social enabler. Finally, I model inclusive and exclusive positivism on the resulting template, and set out the advantages of the ground-enablers proposal. (shrink)