In a recent paper, I launch an attack on a fundamental doctrine of legal positivism. I argue that nonnormative facts cannot themselves constitutively determine the content of the law. In a response published in this journal, Ram Neta defends the view that nonnormative social facts are sufficient to determine normative facts, including both moral and legal facts. Neta's paper provides a useful opportunity to address a spelled-out version of this view, which in various forms is widely held in philosophy of (...) law and other areas of philosophy. I begin by addressing Neta's attempts to show that descriptive facts can alone determine moral and legal facts. First, Neta's account of why it is wrong to break promises fails. In addition to other problems, it begs the question by taking for granted that a person's desires or other motivational states necessarily justify the actions that they motivate. Next, I turn to Neta's attempt to provide a counterexample to my view about law. In my original paper, I claim that the nature of the constitutive determination relation in the legal domain is what I call rationaldetermination. Roughly speaking, a full constitutive account of the legal facts must include reasons that explain the relation between the determining facts and the legal facts. The facts on which Neta's putative counterexample depends cannot be reasons of the required sort because they take for granted what they are supposed to explain—the way in which nonnormative social facts contribute to the content of the law. Finally, I address the larger issue of how far my argument applies to other domains. I consider and reject Neta's argument that purports to show that all normative domains have the relevant features of the legal domain. I then sketch a competing picture of some normative domains. (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)

The paper attempts to pose a problem for theories claiming that intentional attributions are essentially normative. Firstly, I argue that the claim is ambiguous. Secondly, that three possible interpretations of the claim can be distinguished: one that appeals to normative impositions put on agents of intentional states, another that exploits the fact that one can normatively assess the states in question and a further one that locates normativity in the domain of special intentional explanations. Thirdly, it is argued that each (...) interpretation faces serious difficulties: they either fail to provide a justification for the claim they intend to make or they contradict certain justified observations about intentional attributions. (shrink)