Accepting freedom : legal normativity without political obligation

This dissertation examines the nature of legality (i.e. the quality of being law) and provides a unique understanding of legal normativity. As I will use the term, 'legal normativity' refers broadly to the relationship between legality and reasons for action. Explanations of legal normativity can be grouped into two categories, one consisting of legal positivist interpretations and the other consisting of anti-positivist interpretations. There are several core theses comprising legal positivism; among these, I am primarily concerned with the separability thesis, which affirms that identifying law does not necessarily involve moral judgments or evaluations. The anti-positivist thesis denies the separability thesis. Although explanations of legal normativity often assert either the separability thesis or the anti-positivist thesis, it is, I will argue, possible to plausibly explain the phenomena without asserting one or the other. I will attempt to provide such an explanation in the form of (what I will call) the 'acceptance model' of legal normativity. The acceptance model responds to the contention that, while existing legal positivist theories (e.g. those presented by HLA Hart, Joseph Raz, and Scott Shapiro) are inadequate to account for legal normativity (or at least face significant difficulties in doing so), anti-positivist theories (e.g. those of Immanuel Kant, Ronald Dworkin, and Nigel Simmonds) are unnecessary to account for legal normativity. The acceptance model explains legal normativity as consisting of at least two layers. First, a legal system, where satisfying Hartian requirements and exhibiting (to some extent) each of Lon Fuller's precepts of legality, necessarily provides (1) officials with choices entailed by their official roles, and (2) certain subjects with several choices that may be protected by a right to bodily integrity. The provision by a legal system of these choices represents a prima facie reason for conforming with legal directives to an extent necessary to establish efficacy. This is because, per Hart, a legal system exists only if efficacious, i.e. only if its directives are sufficiently conformed with. I will refer to such conformity as 'efficacious conformity.' The prima facie reason to efficaciously conform, then, is to facilitate the existence of the legal system so that it can provide the aforementioned choices to officials and subjects. This prima facie reason to efficaciously conform is a reason that applies to those legal directives-- regardless of their content-- that must be conformed with in order to facilitate efficacy. Second, the reason for efficacious conformity, manifested by the provision of these choices, is 'had' by officials and certain subjects because this reason counts as such from the perspective of the practical reasoning of officials and certain subjects. This reason counts as such from the perspective of the practical reasoning of officials and certain subjects because of (what I will call) the implied point of view. An official or subject adopts the implied point of view when, in executing his role as official or by making a choice provided by law, he exercises for any reason his capacity to choose. By exercising for any reason his capacity to choose in execution of his role, or by making a choice provided by law, an official or subject treats as true the proposition that the legal system provides choices with which to satisfy reasons (i.e. whatever reasons an official has for executing his role, or that a subject has for making a choice provided by law). As a result, officials and certain subjects ought to treat as true the proposition that there is a prima facie reason to efficaciously conform with legal directives. The prima facie reason to efficaciously conform is to facilitate the legal system, which exists only if efficacious, so that it can provide officials and subjects with these choices.