The Law in spite of Itself: An Inquiry into the Tension between Rights and Legal Obligation in Modern Legal Positivism

Abstract

<p>This thesis is an attempt to show the legitimacy and, in many cases, the natural necessity of entrenched constitutional rules, or of constitutional conventions having the same effect. I begin with an analysis of W.J. Waluchow's common law approach to constitutionalism in making a case against the anti-constitutionalism characteristic of Jeremy Waldron. I also draw on the right-based theory of Alan Gewirth, ultimately arguing that any agent should be able to accept (or at least not reasonably reject) the justifiability of a robustly liberal and universally egalitarian constitution. This, I argue, ought to be viewed as justifiable on the basis that nothing less may suffice if we are both truly concerned with rights in general, and with accurately describing the nature of our own right-claims in particular. Thereafter, I expand on H.L.A. Hart's 'minimum content of natural law' thesis, particularly in light of Joseph Raz's theory of authority. Regarding the former, I argue that it is unclear that the validity of any given law obtains just because I an otherwise valid authority deems it so, even if Hart's own criteria for the existence of a legal system are apparently met. Regarding Raz's theory, I argue that if certain laws as put forth by such a sovereign are conceptually incapable of allowing agents to better conform to their own reasons for action, they are therefore conceptually excluded from his own "normal justification" and "dependence" theses-and thus from the nature of (even potentially) authoritative judgment-to begin with.</p> <p>In these ways,I argue that the positivist criterion of legal validity should be narrower than is normally acknowledged, on the basis that the bare conceptual possibility (even if not the necessity) of a law's being authoritative is surely something which, if lacking, undermines that law's validity to a similar extent. In other words, it is only through the potential coherence of laws with agents' reasons for action that there could be any coherent normative duty to obey the law (in particular or in general) to begin with, insofar as we want to claim that a law can actually obligate (rather than merely oblige) any agent over whom it claims authority.</p>