David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
In Leslie Green & Brian Leiter (eds.), Oxford Studies in Philosophy of Law. Oxford University Press (2011)
A spectre is haunting legal positivists – and perhaps jurisprudes more generally – the spectre of the normativity of law. Whatever else law is, it is sometimes said, it is normative, and so whatever else a philosophical account of law accounts for, it should account for the normativity of law. But law is at least partially a social matter, its content at least partially determined by social practices. And how can something social and descriptive in this down-to-earth kind of way be normative? This is presumably a problem for any theory of law, but it is especially acute for legal positivism, according to which (roughly speaking) all there is to facts about legality are such descriptive social facts. If this is so, the thought goes, the task of accommodating the law’s normativity immediately becomes both more daunting, and more urgent. Unfortunately, though, it is entirely unclear what the problem of the normativity of law is supposed to be. Indeed, I suspect that there is no one problem here, as different people seem to have in mind different problems when they use this unhelpful phrase. At least one family of issues people seem to have in mind when they talk about the normativity of law is a host of issues pertaining to the reason-giving force of the law. The law, it is sometimes said, gives reasons for action, and a theory of law should accommodate this obvious fact. But even when we focus just on questions regarding the reason-giving force of the law (and from now on I will restrict myself to just those, leaving other things people may have in mind when they talk about the normativity of law for another occasion), it is still not clear what the problem is. Indeed, my main purpose in this paper is to make some progress in understanding the relevant question here. And my conclusion is going to be somewhat skeptical: Once we are clear on what reason-giving in general consists in, and on what reason-giving powers the law actually has, there is not much by way of a problem here that needs to be solved, not a deep and interesting phenomenon here that theories of law need to accommodate, and that therefore places adequacy constraints on plausible theories of the nature of law..
|Keywords||Normativity of Law Legal Positivism|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
Jules L. Coleman (2009). Beyond Inclusive Legal Positivism. Ratio Juris 22 (3):359-394.
Kevin Walton (2013). The Particularities of Legitimacy: John Simmons on Political Obligation. Ratio Juris 26 (1):1-15.
George Letsas (2014). The DNA of Conventions. Law and Philosophy 33 (5):535-571.
Similar books and articles
Christine M. Korsgaard, A Reply to Carol Voeller and Rachel Cohon: “The Moral Law as the Source of Normativity” by Carol Voeller "The Roots of Reason" by Rachel Cohon.
Elliot N. Dorff (2007). For the Love of God and People: A Philosophy of Jewish Law. The Jewish Publication Society.
Joseph Raz (2009). Between Authority and Interpretation: On the Theory of Law and Practical Reason. Oxford University Press.
Joseph Raz (1979). The Authority of Law: Essays on Law and Morality. Oxford University Press.
Roger A. Shiner (1992). Norm and Nature: The Movements of Legal Thought. Oxford University Press.
David-Hillel Ruben (1972). Positive and Natural Law Revisited. Modern Schoolman 49 (May):295-317.
Neil MacCormick (2007). Institutions of Law: An Essay in Legal Theory. Oxford University Press.
Mark Greenberg (2006). How Facts Make Law. In Scott Hershovitz (ed.), Exploring Law's Empire: The Jurisprudence of Ronald Dworkin. Oxford University Press. 157-198.
Added to index2009-02-17
Total downloads108 ( #15,456 of 1,696,640 )
Recent downloads (6 months)7 ( #81,307 of 1,696,640 )
How can I increase my downloads?