Putting Legal Objectivity in its Place (original) (raw)
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There are at least two kinds of normativity. They can easily be distinguished, but nevertheless they are sometimes confused. This article aims to clarify the distinction and thereby to prevent more confusion. The one kind of normativity has to do with what ought to be done, or what ought to be the case. In connection with this kind of normativity, I will use the word “deontic”, a term which is traditionally used in the logic for ought-to-do and ought-to-be. The other kind of normativity has to do with facts that exist as the result of applying a rule. In connection with this kind of normativity, I will use the word “rule-based”. Rule-based facts are also known as “institutional facts”. Being deontic and being rule-based do not exclude each other. However, being deontic is not a subcategory of being rule-based, and neither is it the other way around. Therefore there are two kinds of normativity, which are (onto)logically independent of each other,
'Legal Statements and Normative Language' (2011) 30 Law and Philosophy 167-99
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Can there be a non-reductivist, source-based explanation of the use of normative language in statements describing the law and legal situations? This problem was formulated by Joseph Raz, who also claimed to have solved it. According to his well-known doctrine of ‘detached’ statements, normative legal statements can be informatively made by speakers who merely adopt, without necessarily sharing, the point of view of someone who accepts that legal norms are justified and ought to be followed. In this paper I defend two theses. I argue, first, that the notion of a detached statement cannot be made to work, and that Raz’s problem is thus not thereby solved. But the problem itself, I also suggest, is a false one.
2020
The text examines the status of the truth in the legal norms, trying to answer the questions of whether they can be a subject to a truth assessment and, if such assessment is possible, how a truth value can be attributed to legal norms. To achieve this goal, first of all, the text discusses some basic linguistic conceptions concerning the nature and truth of legal norms and subsequently, a complex approach is being proposed for attributing truth-value to legal norms. On the one hand, the latter’s being studied by the methods of deontic logic and theory of possible worlds, and on the other hand, their relation to truth is being explained by semantic anti-realism.
Legal Theory, Law, and Normativity
This is an extended review (ca. 4,500 words) of Joseph Raz's "Between Authority and Interpretation." Joseph Raz’s new book, Between Authority and Interpretation, collects his most important papers in the philosophy of law and the theory of practical rationality from the mid-1990s to the mid-2000s. In these papers, Raz not only advances earlier theses but also breaks new ground in a number of areas. I focus on three of Raz’s topics here: theories of law, separability and necessity, and the normativity of law. While I am generally sympathetic to Raz’s thinking on these topics, I raise some room for doubt – especially with regard to his pessimism about fijinding a uniquely best theory of law and the relationship between law and morality.
‘Elusive Normativity’ deals with the nature of normativity in general and the normativity and the nature of law in particular. The first part of the paper contains a review of Stefano Bertea’s book The Normative Claim of Law. In this book Bertea aims to do two things. First he defends the view that the law makes a normative claim on us. And second he aims to found this normative claim. The main conclusion about this book is that Bertea either made it too hard on himself by arguing what would be obvious given one interpretation of his starting point, or made it too easy by devoting little attention to arguing one of his assumptions given another interpretation of his starting point. One of the main assumptions of Bertea’s book is that the normativity which the law according to Bertea claims to have cannot be reduced to matters of fact, such as the psychology of the law users. The second part of this paper is mainly devoted to a scrutiny of this assumption. Whether, and in what manner, such a ‘reduction’ is possible are the questions which guide this second part. The conclusion is that such a reduction is possible if one takes a constructivist approach to normative justification.