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Notes
1 Kenneth M Ehrenberg, The Functions of Law (Oxford University Press 2016).
2 ibid 43.
3 ibid 44.
4 ibid 46.
5 ibid.
6 ibid 184.
7 HLA Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard Law Review 593, 622–4.
8 Ehrenberg (n 1) 186.
9 ibid 189.
10 ibid.
11 ibid 191.
12 ibid 131.
13 ibid 46.
14 ibid.
15 ibid 47.
16 See, e.g., ibid 14; 98 (arguing that positivists are engaged in metaphysical investigation that is connected to theorists’ views about the nature of law); 102 (again saying that positivist theorists are interested in the nature of law); 119 (stating that metaphysics comes first and can tell us ‘general truths about law’s nature’); 139 (claiming that ‘We can analyze [law’s] nature by what it wears on its sleeve.’); 142 (arguing that ‘we might aspire for [our concept] to encompass as much as possible of the phenomenon as it exists (its nature).’); 160 (saying that metaphysical questions are important because a clear understanding of law’s ontology serves other purposes.); and 160 (arguing that answers to certain questions ‘will be found partly in understanding the metaphysics of law’.) Apart from these specific refences to nature or metaphysical inquiry, Ehrenberg also claims throughout the book that law ‘is’ an institutionalized abstract artifact, but he does not provide an account of the kind of existence claim he is making.
17 ibid 35.
18 ibid 119.
19 ibid 139.
20 ibid 119.
21 ibid.
22 ibid 120.
23 ibid.
24 ibid 18.
25 ibid 19.
26 See Hillary Nye, ‘A Critique of the Concept—Nature Nexus in Joseph Raz’s Methodology’ (2017) 37 OJLS 48 for arguments along similar lines.
27 Ehrenberg (n 1) 19.
28 See, e.g., Joseph Raz, The Authority of Law (2nd edn, OUP 2009) ch 3, ‘Legal Positivism and the Sources of Law’, 49
29 See, e.g., Ronald Dworkin, Taking Rights Seriously (Harvard UP 1978) ch 4, ‘Hard Cases’, 81.
30 Ehrenberg (n 1) 120.
31 ibid.
32 ibid 128.
33 ibid 125.
34 ibid.
35 See Ehrenberg’s discussion in ibid Chapter 4 of natural law theorists who ‘run the risk of being unable to accommodate defective members of the class, seeing a failure of law to perform its function as rendering the token not-law.’ (69) There are complexities here, and many of the theorists he discusses do not take the strongest view on this issue, but the point remains that there are positions which are not wholly implausible and which some people do adopt that differ from Ehrenberg’s position. So there is disagreement on this question.
36 ibid 138.
37 ibid.
38 ibid 139.
39 ibid.
40 ibid 140.
41 ibid 141.
42 ibid 142.
43 ibid.
44 ibid.
45 ibid 144.