Document Type

Article

Publication Title

University of Pennsylvania Journal of Constitutional Law

Abstract

The purpose of this Article is to ask, first, whether positive theories of law can provide explanations of law, legal practices, and institutions from an internal perspective. H.L.A. Hart argued that in a genuine legal system people, or at least legal officials, do not obey the law out of fear of sanctions, but because they accept legal norms, internally, as providing practical reasons for acting or refraining from acting. Legal norms cannot be reduced to systems of punishment but must be understood to guide action in other ways. Are the methodological commitments of positive theory to economic modeling compatible with such a viewpoint? A number of recent papers have been predicated on there being an affirmative answer to this question. But none of them has as yet confronted the case for the other side. The second purpose of the Article is to show that positive theory can help to clarify and possibly resolve problems that arise from the internal point of view. This seems possible, however, only if we can accomplish the Article's first purpose.

First Page

273

Volume

10

Publication Date

2008

Download

Share

COinS