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38 Law & Phil. 1 (2019)

handle is hein.journals/lwphil38 and id is 1 raw text is: Law and Philosophy (2019) 38: 1-27 © Springer Nature B.V. 2018 https://doi.org/10.1007/s10982-018-9334-8 CrossMark GEORGE DUKE: LAW'S NORMATIVE POINT (Accepted 11 June 2018) ABSTRACT. This paper defends the explanatory priority for the general descrip- tive theory of law of an investigation into law's normative point over an inves- tigation of law's other central features. The paper begins by clarifying the normative priority thesis and implications of the assertion that law has a normative point. It then develops, in Section II, two arguments in favour of the priority thesis. Section III demonstrates the explanatory power of the law's normative point priority thesis by reference to the related, but derivative, problem of the normativity of legal directives. The current paper defends the explanatory priority for the general descriptive theory of law of an investigation into law's normative point over an investigation of law's other central features. This methodological question of explanatory priority assumes particular significance for contemporary analytical jurisprudence in light of some apparent recent convergences between natural law and legal positivist positions. In particular, whereas contemporary versions of natural law theory explicitly acknowledge law's positivity, influential adherents of legal positivism have recently sought to move beyond misleading characterisations of the position in terms of the denial of necessary connections between law and morality.' The method- ological question of the explanatory priority of either the normative point of law or other central features such as social facticity remains, however, an issue of contention. The paper begins by clarifying the meaning of the normative priority thesis and several important ' See, for example, John Finnis, 'The Truth in Legal Positivism' in Collected Essays: Volume IV (Oxford: Oxford University Press, 2011), 185; John Gardner, 'Legal Positivism: 5 '% Myths', American Journal ofJurisprudence 46:1 (2001), 222-225; Leslie Green, 'Legal Positivism' in The Stanford Encyclopedia of Philosophy htTp:/ /plato.stanford.edu/entries/legal-positivism/(last accessed 27 February 2018).