Elusive Normativiy (original) (raw)
Related papers
Introduction to the Normative Claim of Law (Oxford: Hart, 2009)
This book focuses on a specific component of the normative dimension of law, namely, the normative claim of law. By 'normative claim' we mean the claim that inherent in the law is an ability to guide action by generating practical reasons having a special status. The thesis that law lays the normative claim has become a subject of controversy: it has its defenders, as well as many scholars of different orientations who have acknowledged the normative claim of law without making a point of defending it head-on. It has also come under attack from other contemporary legal theorists, and around the normative claim a lively debate has sprung up. This debate makes up the main subject of this book, which is in essence an attempt to account for the normative claim and see how its recognition moulds our understanding of the law itself. This involves (a) specifying the exact content, boundaries, quality and essential traits of the normative claim; (b) explaining how the law can make a claim so specified; and (c) justifying why this should happen in the first place. The argument is set out in two stages, corresponding to the two parts into which the book is divided. In the first part, the author introduces and discusses the meaning, status and fundamental traits of the normative claim of law; in the second, he explores some foundational questions and determines the grounds of the normative claim of law by framing an account that elaborates on some contemporary discussions of Kant's conception of humanity as the source of the normativity of practical reason.
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.
Jurisprudence, 2012
New Essays on the Normativity of Law is a collection of essays which aims to introduce new writings that belong to one of three types of approach to the problem of legal normativity, namely (i) the theory of planning agency, (ii) legal conventionalism, and (iii) constitutivism, and to stimulate readers to engage with and learn from writings in a different tradition of thinking than their own (1). The book is divided into three parts. Each part deals with one of the three types of approach to the problem of legal normativity and features one lead essay in which the author provides a positive account of the normativity of law, and two or three shorter essays in which the positive account is critically discussed. The lead essays are Scott Shapiro’s ‘Planning Agency and the Law’ (Part I), Andrei Marmor’s ‘The Conventional Foundations of Law’ (Part II), and Stefano Bertea’s ‘Law and Obligation: Outlines of a Kantian Argument’ (Part III). I believe the editors have been successful in their aim. To read this book is to learn quite a bit about various ways in which one may try to solve the problem of the normativity of law. To read the book is also to be stimulated to engage with and learn from writings in a tradition that one may not have been well acquainted with previously. I myself have profited from reading about the constitutivist approach, in particular, for precisely this reason. I shall nevertheless focus in this review on the lead essays in Parts I and II, in which the authors attempt to account for the normativity of law within the framework of legal positivism. The reason for this is that I have more to say about this debate and the questions involved than I have about constitutivism. I should, however, like to begin with a few words about degrees of normativity (section 2) and DOI: 10.5235/Jurisprudence.3.2.509 (2012) 3(2) Jurisprudence 509–521
2012
The debates about the interrelations between reason and law have undergone a change after the eighteenth century. References to the recta ratio of jusnaturalistic tradition have not disappeared, but other comprehensions of legal reason have developed. The European debate over legal positivist science has contributed to this in a manifestation of the rationality of law. This transformation may be considered the basis for the development of true “legal technologies” throughout the twentieth century. On the other hand, in the context of theories of positive law which have taken the relation between ethics and legal reason as a problem, the formation of discourses on coercion (Austin and Holmes), on validity (Kelsen and Hart) and on justification (Alexy and Dworkin) has also contributed to the emergence of new models of legal rationality. In this paper, it is highlighted that the construction of these models is linked to the “points of view” which theories have proposed as legitimate fo...
Acta Juridica Hungarica
The article is the second part of an analysis that seeks to clarify the distinctive normativity of law, as it is refl ected in the legal systems of constitutional democracies. It explores the ability of interpretive theories to capture the conceptual characteristics of the normativity of law. The article argues that it is its institutional character that makes the normativity of law distinctive. The normativity of law must be construed as a form of institutional normativity. The analysis of the institutional character of legal norms revolves around the idea of obligations. It implies that the distinctive normativity of law builds on normative guidance by authoritative institutions. The ability of the law to provide normative guidance is explained in terms of three types of reasons: moral reasons, compliance reasons and response reasons. An implication of this insight is that moral legitimacy is constitutive of the normativity of law. The article concludes with an exploration of the dimensions of moral legitimacy in law, and the way the interplay of the justifi catory background to normative claims and the institutional features of law make false normativity in law possible.
A Problem for the Unambitious View of Legal Normativity
Revus, 2019
In this contribution, I discuss the so-called "unambitious view of legal normativity", as it is specifically theorised by Brian Bix. While I agree with Bix that legal normativity should not be assumed to be reducible by default to moral normativity, I will argue that the normativity of law cannot be qualified as a sui generis form of normativity. For, pace Bix, the quality of legal normativity is best understood as genuine. That is, the normative claims the law makes on its subjects do address the general practical question: What ought we to do?
This essay is an examination of the relationship between phenomenology and analytic method in the philosophy of law. It proceeds by way of a case study, the requirement of compliance in Raz’s theory of mandatory norms. Proceeding in this way provides a degree of specificity that is otherwise neglected in the relevant literature on method. Drawing on insights from the philosophy of art and cognitive neuroscience, it is argued that the requirement of compliance is beset by a range of epistemological difficulties. The implications of these difficulties are then reviewed for method and normativity in practical reason. A topology of normativity emerges nearer the end of the paper, followed by a brief examination of how certain normative categories must satisfy distinct burdens of proof.