This chapter revisits Hart’s challenge to conceptual rule-scepticism, focusing on his argument from the fallibility of final judicial decisions. It argues that Hart’s own account generates a paradox: if final decisions are legally binding yet sometimes legally incorrect, then it becomes legally correct to comply with what is legally incorrect. The author proposes an alternative explanation of the normativity of legal discourse that avoids this paradox. Instead of grounding normativity in pre-existing rules, he locates it in a pragmatic presupposition constitutive of adjudication—namely, that judicial decisions purport to agree with authoritative legal sources. On this view, final decisions are not legally fallible and their criticism is explained as a challenge to the aforementioned pragmatic presupposition rather than as proof of legal error.
Kristan, A. (2018). Another way to meet Hart's challenge. Oxford : Hart Publishing (an imprint of Bloosbury Publishing).
Another way to meet Hart's challenge
Andrej Kristan
2018
Abstract
This chapter revisits Hart’s challenge to conceptual rule-scepticism, focusing on his argument from the fallibility of final judicial decisions. It argues that Hart’s own account generates a paradox: if final decisions are legally binding yet sometimes legally incorrect, then it becomes legally correct to comply with what is legally incorrect. The author proposes an alternative explanation of the normativity of legal discourse that avoids this paradox. Instead of grounding normativity in pre-existing rules, he locates it in a pragmatic presupposition constitutive of adjudication—namely, that judicial decisions purport to agree with authoritative legal sources. On this view, final decisions are not legally fallible and their criticism is explained as a challenge to the aforementioned pragmatic presupposition rather than as proof of legal error.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
