Fact as Illusion: Why Positivism Cannot Be an Empirical Theory of Law

Abstract

Introduction: The article offers an epistemological deconstruction of the fundamental concept of legal positivism — the category of “fact.” The author calls into question the possibility of constructing an empirical theory of law within the framework of legal positivism, proceeding from the internal contradictions of its initial premises.Methodology and Materials: The study relies on an interdisciplinary synthesis: Kantian transcendentalism, post-positivist philosophy of science, level methodology, the distinction between “brute” and “institutional” facts, communicative theory of law, and legal realism. Our method is the diagnosis of the gap. We do not merely apply ready-made tools; we expose the fundamental gap between the Is (text, fact, behavior) and the Ought (norm, obligation, justice) at the very heart of legal cognition.Results and Discussion: It is demonstrated that positivism operates with an ambiguous concept of fact, tacitly identifying: fact N 1 (empirical): the physical existence of the legal text (paper, ink, file) and fact N 2 (transcendental): the normative force of the prescription, its bindingness, not given in experience but attributed to the text through the act of interpretation and recognition. This substitution masks the logical leap across “Hume’s guillotine”, pretending that “ought” is derived from “is”, whereas in reality, it is embedded in the premise before the syllogism begins. The level methodology uncovers the mechanism behind the birth of a “quasi-empirical” object — a text endowed with the properties of legal meaning. The true source of law’s binding force is discovered at the meta-theoretical level — in acts of intersubjective recognition rooted in the normativity of consciousness.Conclusions: Legal positivism cannot be considered an empirical theory of law. Law has no sensory givenness — there is no “star called Law” to observe. What positivism presents as “facts” (texts, decisions, practices) are merely material traces of interpretation, not the normative reality itself. The only thing jurisprudence deals with is acts of interpretation and recognition, through which normative force is attributed to a text. These acts are not observed; they are performed. They are not a reflection of givenness but a creation of social reality. Acknowledging this fact is not a weakness but a condition of honesty for legal science, which must abandon the positivist illusion of “solid ground” and accept its responsibility for constructing what it claims merely to describe.