Arie Rosen (New York University (NYU) – School of Law) has posted The Normative Fallacy Regarding Law’s Authority (Wil Waluchow and Stefan Sciaraffa (eds.), The Nature of Law: Contemporary Perspectives, Oxford University Press, Forthcoming) on SSRN. Here is the abstract:
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The philosophical treatment of socio-political concepts is susceptible to a methodological fallacy, consisting of an illicit move from statements in moral theory to statements about social and political facts. This fallacy — the normative fallacy — can be found in legal philosophy as well. In this essay I discuss the normative fallacy regarding law’s authority, criticize Raz’s theory of de facto authority as committing this fallacy, and consider the importance of law’s de facto authority (which can be quite different from its moral, rightful authority) to legal philosophy.
Recommended.