Academic

Young on Naive Natural Law

By Lawrence Solum

Michael Young has posted In Defense of Minimal, Naive Natural Law on SSRN. Here is the abstract:

This paper articulates a defense of a minimal natural law view in two ways. First, it argues that a minimal natural law view - a view which affirms that the law itself is intrinsically valuable, reason-giving, and normative - is compatible with a weak view of legal obligation, and with a sharp distinction between law and morality. Second, this paper argues (albeit indirectly, in a methodological way) for the naive view that the law's seeming normativity is best explained by the law's being really normative, in itself and in abstraction from any further circumstance or social facts. The naive view, I argue, is or seems to be our own pre-theoretical view of the law. Yet, the positivist project, as traditionally understood, is committed to denying this intuitive naive view; on the positivist view, the law may really give reasons in some circumstances, but it does not give reasons necessarily, that is, it is not intrinsically reason-giving. This paper argues that the positivist project consequently has a skeptical burden to bear: it must show that all those (including most readers, and including, I suspect, even most positivists) who have some minimal, natural law intuitions are probably confused or mistaken. The positivist has this burden because it is a grounding assumption of the positivist project that the thing to be theorized by a legal philosopher is not any normative thing; unless this assumption is justified, the entire positivist project stands unsupported, and must be dispreferred to the naive view. Addressing the reasons which might be offered for the skeptical conclusion, including the theories and arguments of Joseph Raz and Andrei Marmor, this paper concludes that the positivist burden remains.

This appears to be an unusually sophisticated and well-written student paper. In any event, it is recommended.

Full post as published by Legal Theory Blog on December 27, 2010 (boomark / email).