The last meeting of the spring semester of 2024 Belgrade Legal Theory Group hosted Prof. Hrafn Asgeirsson (University of Surrey), who held a lecture on the topic “How Normative Functions “Shape” the Law: A Grounding Problem For Legal Positivism?”
Prof. Asgeirsson focused on the issue of shaping the law by normative facts or functions based on a distinction between causality and background conditions. He initially noted that certain positivist views face challenges in defining themselves as truly positivist, especially those that intertwine normative assertions about the nature of law with claims about the determinants of legal content, often relating to some normative function that law has as a matter of essence. In that regard, he referred especially to Joseph Raz and Scott Shapiro, who both claim to be exclusive legal positivists although accepting a normative fact as a basis for the concept of law.
Prof. Asgeirsson emphasized that those who identify a fundamental internal contradiction within such perspectives say that if the normative facts in question contribute to shaping legal content in a metaphysical sense, then they must partially serve as its grounding, which clashes with the prevailing characterization of legal positivism—namely, that facts regarding legal content are not necessarily grounded in robustly normative facts. Hence, prof. Asgeirsson suggested viewing normative facts as ennoblers, i.e. necessary conditions for, but not direct causes of, the content of legal norms – social facts would remain the grounding of legal content, even though normative facts (such as claims about the functions of law) would have a significant explanatory role.
Following was the Q&A part of the event, with substantial interest from the audience, which was focused on various aspects of the topic, but mostly on the relation of Prof. Asgeirsson ideas to the views of John Finnis, particularly regarding the consequences of the causality account, as well as whether the account make a legal theory more inclusive in light of functions of law.
The moderator, Sava Vojnović, concluded the meeting by expressing gratitude to all participants for their excellent discussion, as well as expressed the hope that Prof. Asgeirsson would revisit the BLTG soon and present his further research findings.