Two Perspectives on the Requirements of a Practice

Whereas the non-positivist theory of legal content holds that evaluative considerations are fundamental determinants of a legal system’s laws, the positivist theory of legal content holds that they are not and that social facts are the only fundamental determinants of a legal system’s laws. Here, I offer a defense of a non-positivist theory of legal content that relies upon the Hartian theory of a legal system. The Hartian theory of a legal system holds that a system of secondary rules - a complex convergent practice amongst the system’s officials of treating certain kinds of norms as laws - lies at the heart of all legal systems. I argue that these secondary rules are highly similar to the practices that constitute social roles and that in light of this similarity, we can learn much about secondary rules by examining the nature of social roles. I argue that from a perspective that all participants in a rational social role should emulate, the requirements of rational social roles are fundamentally determined by evaluative considerations. I further argue that this conclusion also applies to the requirements of a legal system’s secondary rules. That is, from a perspective that all participants in a rational legal system’s secondary rules should emulate, the requirements of a rational legal system’s secondary rules are fundamentally determined by evaluative considerations and, hence, the laws that such secondary rules determine are also fundamentally determined by evaluative considerations.