Update on the last paper

The number of downloads of my paper on SSRN increased significantly after this nod from the legal theory blog. Prof. Solum includes a nice little note:

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

As gratifying a little blurb as I've ever received!

In a related vein, I found some typos in the version of the last paper I posted here; I have since corrected and made other very minor changes. Until SSRN gets the revised paper out, a cleaned-up version can be downloaded here. Downloading there won't increase my SSRN download numbers, and the chance of making the all-important SSRN niche rankings, but these are the sacrifices I am willing to make for the sake of very slight improvements in readability.

My best wishes to everyone for a very happy holiday, or what remains of it!

New Paper on Some Central Issues in Legal Philosophy

Written for Modern Legal Philosohy this semester, I mount an argument for what I am calling a minimal, naive, natural law view. The abstract is as follows:

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.

Download here. The paper is perhaps best read as one wherein I play with some ideas, rather than finally stake out theoretical territory. Still, I would be grateful for comments or criticisms.