Legal Rights and Extra-Legal Standards: Exploring the Descriptive limits of Positivist Jurisprudence

Abstract

This dissertation examines how description relates to validation and normativity within the discourse of positivist jurisprudence. Some contend that the construction of descriptive, normatively neutral accounts of legal phenomena is logically independent of (and can be undertaken without reference to) the separation of valid law from extra-legal considerations, or the relationship of law to its normative objectives. To my mind, this does not always hold good. That is, it is not necessarily the case that a legal phenomenon can be exhaustively described without reference to the law¿s objectively validable or normative aspects. First, merely describing a phenomenon will not tell us whether or not the subject-matter of the description is a legal phenomenon. Validity, and the separation of the validly legal from the extra-legal, is necessary for this. Secondly, there exist some legal phenomena which can be described only with reference to specific normative standards. In this dissertation I seek to establish that the state¿s enforcement of legal rights constitutes such a phenomenon. Describing this process requires taking recourse to normatively non-neutral standards, and hence challenges positivism¿s descriptive objectives.