Constitutivism and the Normativity of Social Practices: The Case of Law (original) (raw)
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Constitutivism and Normativity: A Qualified Defence
Philosophical Explorations: An International Journal for the Philosophy of Mind and Action, 2013
In this article I defend a meta-normative account of constitutivism by specifically addressing what I take to be a fundamental criticism of the constitutivist stance, namely, the objection that constitutive standards have conceptual, not normative, force, and so that no practical normativity can be extracted from them as constitutive of agency. In reply to this objection, I argue that the conceptual role of the standards constitutive of agency—their applying to us by virtue of our being the kinds of creatures we are—does not exclude, but rather combines with, the normative role the same standards play in our practical life
Grounding Practical Normativity: Going Hybrid
Philosophical Studies, 2012
In virtue of what is something a reason for action? That is, what makes a consideration a reason to act? This is a metaphysical or meta-normative question about the grounding of reasons for action. The answer to the grounding question has been traditionally given in ‘pure’, univocal terms. This paper argues that there is good reason to understand the ground of practical normativity as a hybrid of traditional ‘pure’ views. The paper 1) surveys the three leading ‘pure’ answers to the question of a normative ground, 2) examines one or two of the most difficult problems for each, proposing along the way a new objection to one, and 3) argues that a particular hybrid view about normative grounds –‘hybrid voluntarism’ – avoids each of the main problems faced by the three leading ‘pure’ views.
Frederick Will’s Practice-Based Approach to Normativity
Transactions of the C. S. Peirce Society, 2013
The aim of this paper is to examine Frederick Will's conception of practical normativity as a part of his more general theory of governance. Given the scattered nature of his remarks on practical normativity and the lack of studies on this aspect of his thought, the main goal of the article is to provide a coherent account of Will's conception of practical normativity and to show the role that sociality and practices play in it. The paper will proceed as follows. The first section locates Will's approach in the context of contemporary approaches to normativity and highlights its main distinctive traits. The second section examines Will's conception of rationality as practice, indicating how his broadened view of rationality takes the social dimension into account. The third section discusses Will's idea of normativity as rational governance, while the fourth section offers a general reconstruction of Will's conception of practical normativity and of its relationships with practices. In the fifth and sixth sections the question of the validity of normative claims is raised and Will's conception of social objectivity is introduced. Finally, the concluding section discusses some implications of Will's theory of governance for understanding normativity. Through this reconstruction I intend to show that Will's theory provides a sound basis for theorizing normativity as practice along lines that remain significantly unexplored within contemporary normative theory.
Moral Rationalism and the Normativity of Constitutive Principles
Philosophia
Recently, Christine Bratu and Mortiz Dittmeyer have argued that Christine Korsgaard’s constitutive project fails to establish the normativity of practical principles (such as the principles of morality) because she fails to show why a principle’s being constitutive of a practice shows that one ought to conform to that principle. They argue that in many cases a principle’s being constitutive of a practice has no bearing on whether one ought to conform to it. In this paper I argue that Bratu and Dittmeyer’s argument fails in three important respects. First, they fail to recognize the ways in which Korsgaard’s neo-Kantian view departs in an important respect from more orthodox Kantian views. Second, they fail to recognize the respect in which Korsgaard’s view is a version of moral rationalism. Third, they overlook an scope ambiguity in an important premise of their argument. A sensible way of resolving this ambiguity gives the constitutivist a sensible response to their argument, a response that illuminates how constitutivism works.
Legal System and Practical Reason. On the Structure of a Normative Theory of Law*
Ratio Juris, 1992
It will be argued, firstly, that there is a link between the legal validity of a norm and the rational justifiability of a requirement that judges should apply this norm, based on a normative conception of legal validity and the postulate that judges should act as rational persons; secondly, that rational justifiability of legal norms requires the construction of a legal system in a model of principles that differs from theories, e.g., of Kelsen, Hart, Dworkin and Alexy, which are not fully adequate for a normative conception of law. * This is the English version of the paper "Rechtssystem und praktische Vernunft-Zur Struktur einer normativen Theorie des Rechts" which was awarded the IVR Young Scholars Prize 1991. For helpful comments I am greatly indebted to Victoria Meikle. I would also like to thank Prof. Neil MacCormick and his class for a stimulating discussion of some aspects of this paper. Of course, all remaining mistakes are mine.
Social Practices and Normativity
Turner's The Social Theory of Practices effectively criticized conceptions of social practices as rule-governed or regularity-exhibiting performances. Turner's criticisms nevertheless overlook an alternative, "normative" conception of practices as constituted by the mutual accountability of their performances. Such a conception of practices also allows a more adequate understanding of normativity in terms of accountability to what is at issue and at stake in a practice. We can thereby understand linguistic practice and normative authority without having to posit stable meanings, rules, norms, or presuppositions underlying the manifest diversity of social life.
The Normative Creature: Toward a Practice-Based Account of Normativity
Social Theory and Practice, 1, 40, 2014, 2014
In this paper I offer a first account of a practice-based conception of normativity for the political domain. This standpoint is used to relocate the most sophisticated normative practices of justification and critique within an experience-based framework, that of the human being as a “normative creature”. I begin by discussing the two major paradigms in political theory showing that their neglect of this broad framework of normativity is a serious drawback. I then proceed to articulate the central elements of a practice-based account of normativity: the notions of normative practices and normative orders and an account of the rationality potential of normativity as practice.
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
'Normativity and Reason' explores what might be involved in the claim that the normativity of moral standards is a normativity of reason. Taking the accounts of moral normativity given by a range of moral theorists, including Hume, Pufendorf, Locke, Sidgwick and Scanlon, and comparing these with medieval and early modern scholastic natural law theory, the paper argues that normative standards on action involve a variety of distinct kinds of justificatory force - and that standards of moral right and wrong or of moral obligation involve, in particular, a distinctive justificatory force of Demand. Using this theory of obligation, the paper argues for a new account of moral rationality, and of the relation of moral and legal obligation.
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.