Legal Positivism and Scottish Common Sense Philosophy

Abstract

This paper identifies a volitional theory of meaning common to speech act theory and legal positivism, represented by Hart and Kelsen. This model is compared and contrasted with the model of social operations developed by Reid, a Common Sense Enlightenment philosopher. Whereas the former subscribes to the view that meaning is generated by acts of will, the latter finds meaning to consist of the dual elements of sign and ‘directedness’.The ability of positivist theories to provide a structural account of the difference between legal rules and other rules is inextricably linked to this commitment to the volitional theory of meaning. The commitment to the volitional view however leads to problems in requiring that some kind of authority be presupposed in for plain rules to attain legal force. Such authority can only be established with recourse to further rules (thus falling into a malign infinite regress) or must be accepted as a matter of faith. Reid's criterion of direction however vitiates the need for an authority, instead accounting for social communication in general, and rules in particular, in terms of sociological factors. Although no comprehensive critique of the volitional theory is proposed, Reid's model is preferable on the grounds of explanatory richness.The core claims of the paper are that: (a) legal positivism necessarily subscribes to the volitional theory of meaning; (b) rejection of the volitional theory necessarily entails rejection of the positivist view that legal and non-legal rules can be differentiated on structural grounds (c) another counter-model exists which avoids some of the pitfalls of the volitional theory; (d) if the volitional theory is rejected then the existence of rules can only be accounted for in a 'strong' sociological sense and legal theory must accordingly accept the dominant role of sociology in conceptualising the nature of rules.