Attitude and the normativity of law

Law and Philosophy 36 (5):469-493 (2017)
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Though legal positivism remains popular, HLA Hart’s version has fallen somewhat by the wayside. This is because, according to many, the central task of a theory of law is to explain the so-called ‘normativity of law’. Hart’s theory, it is thought, is not up to the task. Some have suggested modifying the theory accordingly. This paper argues that both Hart’s theory and the normativity of law have been misunderstood. First, a popular modification of Hart’s theory is considered and rejected. It stems from a misunderstanding of Hart and his project. Second, a new understanding of the mysterious but often-mentioned ‘normativity of law’ is presented. Once we have dispelled some misunderstandings of Hart’s view and clarified the sense in which law is supposed to be normative, we see that Hart’s view, unmodified, is well suited to the task of explaining law’s normativity.

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Author's Profile

Jeffrey Kaplan
University of North Carolina, Greensboro

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Two Concepts of Rules.John Rawls - 1955 - Philosophical Review 64 (1):3-32.
Some Reflections on Language Games.Wilfrid Sellars - 1954 - Philosophy of Science 21 (3):204-228.
Some Reflections on Language Games.Wilfrid Sellars - 1957 - Journal of Symbolic Logic 22 (4):402-403.
Two Concepts of Rules.John Rawls & Andrei Korbut - 2013 - Russian Sociological Review 12 (2):16-40.

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