Berkeley Law

The root of positivism is the idea that a legal system's criteria of legal validity have authoritative status just in virtue of social facts, where "social facts" consist of the behavior, beliefs, dispositions, and attitudes of certain persons in the community whose legal system it is. John Austin's version of positivism treated the seat of command (or legislation) as the scene of the social facts constitutive of law's authority, and habitual obedience as the relevant form of those facts. Modern positivists, following H.L.A. Hart, have instead treated the scene of adjudication as the source, and "following a social rule" as the form of those facts. But there are notorious problems with the conventionalist account of law's authority, central among which is that it makes mysterious the persistence of law's authority in circumstances of serious and pervasive disagreement. Taking up a proposal by Scott Shapiro and Jules Coleman, I propose a way of understanding the social facts constitutive of a community's authoritative criteria of legality in terms of judicial collective action. This model of collective action grounds law's normativity socially, despite judicial disagreement, thus maintaining the insight of positivism.