Positivismo jurídico normativo: de la metafísica a la política El presente trabajo toma como punto de partida el libro Positivismo jurídico “interno”, de María Cristina Redondo, y propone una concepción alternativa de positivismo jurídico normativista. Se sostiene que la teoría del derecho puede ser neutral en la medida en que sea intersubjetiva y transparente en cuanto a sus propias premisas metafísicas. Los objetivos del trabajo son el de echar luz acerca del papel de la metafísica y del sentido común en (...) la construcción del concepto de derecho, y el de hacer más abiertamente transparentes las elecciones ético-políticas que constituyen a los discursos jurídicos, incluidos los teóricos. El trabajo analiza las tesis de Redondo acerca de la distinción entre ontología y epistemología y la posibilidad de conocimiento objetivo: la idea central defendida es que la inter-subjetividad, y no la objetividad, debería ser el criterio apropiado para el positivismo jurídico normativista. Luego se examina el rol de la normatividad en el positivismo jurídico normativista, enfocándose en la naturaleza metafísica de la tesis de que el derecho pertenece a los campos de la normatividad y la razón práctica. Las secciones siguientes examinan las concepciones reduccionistas y anti-reduccionistas sobre las “entidades” jurídicas y la teoría de las fuentes del derecho. La sección final aborda la cuestión de la neutralidad valorativa de la teoría jurídica y analiza la posibilidad de describir el punto de vista interno de los participantes sin asumir compromiso alguno con la práctica jurídica existente. (shrink)

This article analyses the work of Martin Loughlin on the nature of public law, and in particular, his ostensibly strident anti-positivism. It is argued that despite this, Loughlin's work can be reconciled with a normative account of legal positivism, based on the work of Jeremy Waldron. The article maintains that Loughlin's account of public law as political jurisprudence is methodologically compatible with, and potentially even substantively complementary to, normative legal positivism. It is ultimately suggested that this reconciliation provides a methodology (...) for public law scholarship which is both positivist and political, and which may offer insight into the subject beyond that which either approach might generate alone. (shrink)

The fractious but potentially fruitful dialogue between legal history and legal theory has been the subject of much recent scholarly attention. Despite this, instances of meaningful engagement over the role of history in legal theorising remain scarce. This is particularly true in respect of normative theorising—the difficult but crucial tasks of critiquing and reforming law—where history is frequently considered to play a relativising role that threatens to destabilise strong evaluation. In this article, I argue that in order to advance the (...) dialogue it is essential to look beyond disciplinary differences and instead focus on the divide between immanence and transcendence, which arises within and also between legal history and legal theory. Reorienting our attention in this way discloses important sources of dissonance but also points towards significant opportunities for cooperation; it is therefore an essential first step in the pursuit of meaningful dialogue, either critical or collaborative. (shrink)

This chapter discusses two different issues about the relationship between legal positivism and robust normativity (understood as the most authoritative kind of normativity to which we appeal). First, the chapter argues that, in many contexts when discussing “legal positivism” and “legal antipositivism”, the discussion should be shifted from whether legal facts are ultimately partly grounded in moral facts to whether they are ultimately partly grounded in robustly normative facts. Second, the chapter explores an important difference within the kinds of arguments (...) that legal philosophers give for the (purported) truth of legal positivism. The difference concerns whether (purportedly) robustly normative facts are appealed to as premises in those arguments or not. (A closely connected issue is whether (purportedly) normative facts that bear one or more important connections to robustly normative facts are appealed to in premises to those arguments.) The chapter argues that thinking about this dividing line helps people better situate the positivist/antipositivist dispute, better understand the space of views in legal philosophy, better evaluate those views, and avoid having merely verbal disputes. (shrink)

This book re-imagines law as ecolaw. The key insight of ecological thinking, that everything is connected to everything else - at least on the earth, and possibly in the cosmos - has become a truism of contemporary theory. Taking this insight as a starting point for understanding law involves suspending theoretical certainties and boundaries. It involves suspending theory itself as a conceptual project and practicing it as an embodied and material project. Although an ecological imagining of law can be metaphorical, (...) and can be highly imaginative and suggestive, this book shows that it is also literal. Law is part of the material 'everything' that is connected to everything else. This means that once the previous certainties of legal thinking have been dismantled, it is after all possible to think of law as 'natural' - as embedded in and emergent from a normative biophysical nature. The book proposes that there exists a natural nomos: animals, plants, and Earth systems that produce their own values and norms from which human norms and laws emerge. This book, then, proposes a new way to understand law, and pursues specific arguments to demonstrate the feasibility of law as ecolaw. Drawing inspiration from current trends in the posthumanities, socio-ecological thought, and developments across the natural sciences in their specific intersections with humanities and social science disciplines, this book will appeal both to legal theorists and to others with interests in these areas. (shrink)

Conventionally, international legal scholarship concerned with norm conflicts focuses on identifying how international law can or should resolve them. This book adopts a different approach. It focuses on identifying those norm conflicts that law cannot and should not resolve. The book offers an unprecedented, controversial, yet sophisticated, argument in favour of construing such irresolvable conflicts as legal dilemmas. Legal dilemmas exist when a legal actor confronts a conflict between at least two legal norms that cannot be avoided or resolved. Addressing (...) both academics and practitioners, the book aims to identify the character and consequences of legal dilemmas, to distill their legal function within the sphere of international law, and to encourage serious theoretical and practical investigation into the conditions that lead to a legal dilemma. The first part proposes a definition of legal dilemmas and distinguishes the term from numerous related concepts. Based on this definition, the second part scrutinises international law's contemporary norm conflict resolution and accommodation devices in order to identify their limited ability to resolve certain kinds of norm conflicts. Against the background of the limits identified in the second part, the third part outlines and evaluates the book's proposed method of dealing with legal dilemmas. In contrast to conventional approaches that recommend dealing with irresolvable norm conflicts by means of non liquet declarations, judicial law-making, or a balancing test, the book's proposal envisions that irresolvable norm conflicts are dealt with by judicial and sovereign actors in a complementary fashion. Judicial actors should openly acknowledge irresolvable conflicts and sovereign actors should decide with which norm they will comply. The book concludes with the argument that analysing various aspects of international law through the concept of a legal dilemma enhances its conceptual accuracy, facilitates more legitimate decision-making, and maintains its dynamic responsiveness." -- Publisher's website. (shrink)

The analytical tension between legal norms, moral values, and national interests seems no uncharted territory in political science, but has found very little interest in legal academia. For lawyers, moral values and national interests are largely “unknowns,” dealt with by other disciplines. Looking a bit deeper, the picture becomes more nuanced, however. As part of a roundtable on “Balancing Legal Norms, Moral Values, and National Interests,” this essay argues that norms, values, and interests are not different universes of legal normativity, (...) morality, and specific interests, but are interrelated concepts. Values clearly influence norms and often underpin them, while seemingly concrete norms (rules) are themselves often fragile constructs trying to balance competing interests. Value systems are quite diverse within societies, and this is even truer for interests; each society is a dynamic system of social interaction where conflicting interests are constantly playing out. In a way, underlying conflicts of values and interests are constantly being renegotiated in the legal system, with the norms enshrined in the text of statutes and treaties serving to constitute transitory reference points. (shrink)

Law is the main regulator of public relations, and the question of the proper use and understanding of legal language is essential for law enforcement. This topic is of interest to both lawyers and philosophers, who often join efforts to study it. This article attempts precisely to take such an interdisciplinary approach when examining legal rules as specific linguistic conventions. First of all, for the sake of a better and more thorough understanding of legal language, legal norms are viewed both (...) from the point of view of semantics and from the point of view of pragmatics. Therefore, for this purpose, a distinction is made between legal norms and legal provisions as their linguistic equivalent. Legal norms are then explored through Wittgenstein's Later Philosophy, which describes their semantic content. The pragmatic aspect of the question is explained through John Austin's theory, thus treating legal rules as a kind of specific speech act of a conventional nature. (shrink)

ABSTRACTThe aim of this article is to see whether we can account for the normativity of law within the framework of legal positivism and whether the idea of a social convention could be of help in this endeavour. I argue, inter alia, that we should distinguish between the problem of accounting for the normativity of law, conceived as a necessary property of law, and the problem of accounting for the use of normative legal language on the part of legal actors; (...) that the debate about the normativity of law, which mainly concerns, is more or less identical to the debate between legal positivists and non-positivists; that one cannot account for the normativity of law, conceived along the lines of, within the framework of legal positivism, and that the question of the normativity of law considered within the framework of legal positivism is not an open question. (shrink)

Neuroscience can relate to ethics and normative issues via the brain’s cognitive control network. This network accomplishes several executive processes, such as planning, task-switching, monitoring, and inhibiting. These processes allow us to increase the accuracy of our perceptions and our memory recall. They also allow us to plan much farther into the future, and with much more detail than any of our fellow mammals. These abilities also make us fitting subjects for responsibility claims. Their activity, or lack thereof, is at (...) the heart of culpability. For instance, planning to kill someone is strong evidence of what the law calls mens rea—a guilty mind. Claims about norms, or ethical “should” claims, express two-level propositions, directed at the behaving person at one level, and at that person’s mind and cognitive control network at another level. Thus, “People should stop themselves from hurting others,” is a claim about how people should behave and also a claim about how their cognitive control networks should behave—i.e., they should inhibit harmful behavior, or the intentions leading up to it. Planning is both an ability of the full person, and of that person’s mind. Neuroscience affirms the common notion, seen both in law and folk psychology, that what makes us guilty or culpable are certain events and states that exist in our minds. Overt behavior, including speech, is fallible evidence of these states and processes. Cases of negligence still involve the executive processes, but “negatively,” in that negligence results when certain types of executive activity fail to take place. (shrink)

This study examines how the sell-side analysts interpret firms’ corporate social responsibility activities. Specifically, we examine the differential impact of overall, legal, and normative CSR on the analysts’ earnings forecast dispersion, stock return volatility, cost of equity capital, and firm value. Employing a sample of U.S. public firms during 1993–2009, we find that overall CSR intensities reduce analyst dispersion of earnings forecast, volatility of stock return and cost of capital , and increase firm value. However, its impact is reduced for (...) firms with better accounting and disclosure quality. When we disaggregate CSR into legal and normative CSR, we find that legal CSR decreases analysts’ dispersion, stock return volatility, and COC, while legal CSR increases firm value. The sell-side analysts tend to have less information asymmetry regarding the net benefits of pursuing CSR that is required by laws. We find, however, that the benefit of having normative CSR realized in 1 year lag such that analyst dispersion, stock return volatility, COC decrease, respectively, and firm value increases. Furthermore, we find that the benefit of normative CSR is offset for firms with higher accounting and disclosure quality. (shrink)

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. (shrink)

This article proposes a formal analysis of a fundamental aspect of legal reasoning: dealing with normative conflicts. Firstly, examples are illustrated concerning the dynamics of legal systems, the application of rules and exceptions, and the semantic indeterminacy of legal sources. Then two approaches to cope with conflicting information are presented: the preferred theories of Brewka, and the belief change functions of Alchourrón, Gärdenfors, and Makinson. The relations between those approaches are closely examined, and some aspects of a model of reasoning (...) with normative conflicts are outlined. Since this model takes into account an ordering of the involved regulations, criteria to order legal norms are finally specified. (shrink)

Is the nature of law to be formal procedure or to embody substantive value? This work deals with the traditional conflict in legal philosophy between positivistic and anti-positivistic theories of law. It examines the conflict with respect to seven central issues in legal philosophy--law as a reason for action, law and authority, the internal point of view to law, the acceptance of law, discretion and principle, interpretation and semantics, and law and the common good. This work argues that although this (...) conflict cannot be resolved, the true nature of law is revealed--not obscured--by this perennial situation. (shrink)

Legal norms serve as practical standards for individuals and officials. While this ‘normative aspect’ of law is widely acknowledged, its significance for theories of law remains contested. In this paper, I examine three views on the matter. First, that we should explain legal norms as reason-giving. Second, that we should explain legal discourse as being about reasons for action. Third, that we should explain law as capable of being reason-giving. I survey some challenges associated with each of these views. What (...) they have in common is an implicit assumption about the form that normative explanation must take: that it must be a linear, non-reductive explanation. There is an alternative model for normative explanation available, however. That model explains normative notions in terms of the practices and attitudes involved in recognizing, offering, and demanding them. I highlight the potentials, and limitations, of this practice-centered alternative. (shrink)

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. (shrink)

The author introduces a normative conception of coherence, derived from a pragmatic interpretation of the application of norms to concrete cases. A distinction is made between the justification of a norm and its application. In the case of moral norms, justification and application can be analysed as two different discursive procedures which give rise to different aspects of the principle of impartiality. Impartial justification requires a procedure by which all interests concerned are taken into account whereas impartial application requires a (...) procedure where all features of a situation are considered. The complete description of a concrete case makes necessary a coherent interpretation of all the valid norms which are prima facie applicable. This requirement of an ideal coherent system of norms is restricted to interpretive “paradigms” in the case of legal norms, because it is necessary to produce singular judgments under the restrictive conditions of scarce time and incomplete knowledge. (shrink)

The distinction between norms and norm-formulations commits legal theorists to treating legal norms as entities. In this article, I first explore the path from meaning to entities built by some analytical philosophers of language. Later, I present a set of problems produced by treating norms as entities. Whatever type of entities we deal with calls for a clear differentiation between the identification and individuation criteria of such entities. In the putative case of abstract entities, the differentiation collapses. By changing the (...) notions of the intension and extension of words by extensional and intensional aspects of what we talk about, I outline a methodological programme for Law and Legal Theory. That programme is based in the identification of normativity. (shrink)

It has become increasingly common for legal positivist theorists to claim that the primary objective of legal theory in general, and legal positivism in particular, is "explaining normativity." The phrase "explaining normativity" can be understood either ambitiously or more modestly. The more modest meaning is an analytical exploration of what is meant by legal or moral obligation, or by the authority claims of legal officials. When the term is understood ambitiously - as meaning an explanation of how conventional and other (...) empirical facts can give rise to moral obligations - as many legal positivist theorists seem to be using the phrase, the project is contrary to basic tenets of legal positivism, and has regularly led theorists to propose doubtful theories that ignore "is"/"ought" divisions. (shrink)

According to Ronald Dworkin's mature views on jurisprudence, legal normativity depends on judges’ views about political morality. Plato's own mature views on this subject seem to take the contrary position as he claims that the law is expected to be authoritative in order to preserve a given state of affairs. Therefore, in Plato's view judges are not expected to interpret the law ubiquitously according to their own standards of political morality. In what follows, the discussion starts off by offering a (...) brief account of Dworkin's interpretivism and some of its shortcomings. We shall then move on to Plato's account of legal normativity, especially his views on the authority of law, law as preservation, and finally the politics of law in the light of the debate between conservatism and progressivism. (shrink)

Legal norms are an invention. This paper advances a proposal about what kind of invention they are. The proposal is that legal norms derive from rules which specify role functions in a legal system. Legal rules attach to agents in virtue of their status within the system in which the rules operate. The point of legal rules or a legal system is to solve to large scale coordination problems, specifically the problem of organizing social and economic life among a group (...) of people and their successors, though not every legal rule pertains to a coordination problem. The framework for thinking about legal norms that I describe is a framework for thinking about institutions and policies more generally. The idea is to show that legal norms are a species of institutional norm. There are two central ideas. The first is the idea of a role in an institution. The second is the idea of proxy agency. Proxy agency involves one agent or group acting under the authorization of another agent or group (perhaps subsuming it) in a way that makes the actions of the proxy count as actions (under a description) of the individual or group for which it is a proxy. We get the characteristic structure of a legal system by conceiving of an institutional group, itself conceived of as a set of interlocking roles realized in individuals, as having one or more roles for proxy agents who are authorized by the group to make policy for the group. The set of rules governing the basic constitution of the group and spelling out the powers of the policy proxies determine fundamental norms for the group with specific role responsibilities attaching to particular positions in institutional arrangements. The policies determine further norms whose force derives from the fundamental norms. We must then say some further things to distinguish institutions and policies which we wish to designate as legal. (shrink)

In this article, I distinguish between a moral and a strictly legal conception of legal normativity, and argue that legal positivists can account for law's normativity in the strictly legal but not in the moral sense, while pointing out that normativity in the former sense is of little interest, at least to lawyers. I add, however, that while the moral conception of law's normativity is to be preferred to the strictly legal conception from the rather narrow viewpoint of the study (...) of law's normativity, it is less attractive than the latter from the broader viewpoint of the study of the nature of law. I then distinguish between a moral and a strictly legal conception of the normative force of legal justification, and argue that legal positivists may without contradiction embrace the moral conception, and that therefore the analysis of the normative force of legal justification need not be a problem for legal positivists. I conclude that, on the whole, we have reason to prefer legal positivism to natural law theory. I begin by introducing the subject of jurisprudence . I then introduce the natural law/legal positivism debate, suggesting that we ought to understand it as a debate about the proper way to explicate the concept of law . I proceed to argue that legal decision‐making is a matter of applying legal norms to facts, and that syllogistic reasoning plays a prominent role in legal decision‐making thus conceived . Having done that, I discuss law's normativity , the normative force of legal justification , and the relation between the former and the latter . I conclude with a critical comment on Joseph Raz’ understanding of the question of law's normativity. (shrink)

This book offers a 'genealogical' explanation of law's normativity. The term 'genealogical' conveys a commitment to a non-metaphysical type of enquiry. While it explains how law, as a normative phenomenon, comes about, it does not seek to ground law's normativity in anything but the context of social interaction giving rise to it. Legal normativity is brought about on a daily basis. Whether in revolutionary circumstances or in the quotidian need for judges, lawmakers or citizens to balance law's demands with those (...) of morality or prudence, our ability to bind ourselves through law ultimately depends on our capacity to articulate a better way of living together, and to commit ourselves to it. These efforts of assessment and articulation depend, in turn, on our conception of normative agency. Assert the need to trace the truth of ethical judgments to some independent moral 'facts' conditioning their objectivity, and you will get a different understanding of what it is we are doing when we dispute law's authority in the name of moral values. Tracing the truth of moral judgements back to our own social practices not only affects the nature of disagreement; it also dramatically increases our responsibility when, as lawmakers, judges, or citizens we 'take the law into our own hands' and confront it with our moral expectations. (shrink)

The field of socio-legal research has encountered three fundamental challenges over the last three decades - it has been criticized for paying insufficient attention to legal doctrine, for failing to develop a sound theoretical foundation and for not keeping pace with the effects of the increasing globalization and internationalization of law, state and society. This book examines these three challenges from a methodological standpoint. It addresses the first two by demonstrating that legal sociology has much to say about justice as (...) a kind of social experience and has always engaged theoretically with forms of normativity, albeit on its own empirical terms rather than on legal theory's analytical terms. The book then explores the third challenge, a result of the changing nature of society, by highlighting the move from the industrial relations of early modernity to the post-industrial conditions of late modernity, an age dominated by information technology. It poses the question whether socio-legal research has sufficiently reassessed its own theoretical premises regarding the relationship between law, state and society, so as to grasp the new social and cultural forms of organization specific to the twenty-first century's global societies. (shrink)

In the field of ?neurolaw?, reformists claim that recent scientific discoveries from the mind sciences have serious ramifications for how legal responsibility should be adjudicated, but conservatives deny that this is so. In contrast, I criticise both of these polar opposite positions by arguing that although scientific findings can have often-weighty normative significance, they lack the normative authority with which reformists often imbue them. After explaining why conservatives and reformists are both wrong, I then offer my own moderate suggestions about (...) what views we have reason to endorse. My moderate position reflects the familiar capacitarian idea which underlies much lay, legal, and philosophical thinking about responsibility ? namely, that responsibility tracks mental capacity. (shrink)

In this paper, we discuss the problem of the relationship between legal concepts and legal norms. We argue that one of the widespread theories of legal concepts, which we call ‘the embedding theory’, is false. The theory is based on the assumption that legal norms are central for any legal system and that each legal norm establishes an inferential link between a certain class of facts and a certain class of legal consequences. Alf Ross’s embedding theory was presented in his (...) famous paper “Tu–Tu”. According to Ross, the sole function of legal concepts is to simplify normative information. Hence, the use of legal concepts may be a matter of convenience, rather than necessity. We criticize this approach mainly by pointing to the existence of so-called second order substantive concepts, which are not reducible to any determined set of conditional sentences (inferential links). In short, second order substantive concepts play the role of general standards, and general standards are used to provide flexibility for a particular legal system. In addition, general standards are ‘value loaded’, since they serve as a frame of reference for judges applying law to particular cases. To understand such general standards as a predefined set of conditionals means to overlook their ‘open’ content, and thus their function. In our opinion, the acceptance of the embedding theory means to misinterpret the function of general standards. We also argue that Giovani Sartor’s idea of defective legal concepts doesn’t help to clarify or defend the embedding theory. (shrink)

A simplified relationship between setting of a norm and an individual’s compliance can be characterized by three distinct stages: norm comprehension and processing; the deliberate compliance decision of the individual; and non-deliberate decision-making. On each stage, there is insight from social sciences, experimental psychology and behavioural law and economics making different predictions about individual compliance behaviour. We study the implications of extra-juridical insight as well as normative constitutional requirements on the optimal design of norms. We find considerable variance in norm (...) designs for improving compliance depending on the respective empirical insight. Regarding norm comprehension, there is ambiguity in the relationship between individual’s limited cognitive processing capacity and the constitutional law imperative for norm specificity. The stage of deliberate decision-making relates to the rationality model of human behaviour allowing for economic, reciprocal, communicative human dispositions, each of which requires different law designs to induce individual’s compliance. Homo oeconomicus responds to law design using costs as steering tool. Homo reciprocans can be directed through decentralized self-regulation, governance of small political units and belief management. And compliance of homo communicans can be induced when procedures are perceived as being fair and inclusive. Finally, the existence of non-deliberate decision-making may justify paternalistic legal measures. The findings may inform lawmakers in how to design and draft laws to optimize norm compliance. (shrink)

The author proves that rejecting the existence of permissive norms and limitation of norms to prohibitions and commands alone is possible only with reducing the idea of a function. The essence of the function is then the ability of the expression to generate independently the universal norm formation. Such manipulation is easy on the level of logical analysis, but proves risky from other points of view. If we want the deontic logic, which we construct, to consider the fact that permission (...) is pragmatically necessary for the law-maker to convey his normative preferences, we must solve the consequences of the adopted structure of the function of norms, which originate on the socio-linguistic level. It appears, however, that due to a lack of a pragmatic theory useful for lawyers, there is no proof that the pragmatically strong permission can be expressed by means of a lot of prohibitions and commands (dos and don’ts). Besides, reducing permissions only to the language of legal rules is an obligation to accept the structure of an act of communication, which can find its full motivation in the Husserl’s structure of the direct cognition. (shrink)

Contemporary legal philosophers commonly understand the normative force of law in terms of practical reason. They sharply disagree, however, on how exactly it translates into practical reason. Notably, some have argued that the directives of an authority that meets certain prerequisites of legitimacy generate reasons for action that exclude some otherwise applicable reasons, while others have insisted that such directives can only give rise to reasons that compete with opposing ones in terms of their weight . Does the weighing model (...) provide a normative framework within which law could adequately facilitate correct decision-making? At first glance, the answer appears to be ‘yes’: there seems to be nothing about law-following values—such as coordination reasons, the desirability of social order, deferential expertise, etc.—which prevents them from being factored into our decision-making in terms of normative weight that tips the balance in favor of compliance with law inasmuch as it is worthwhile to comply with it. This impression, however, turns out to be incorrect when, drawing on a body of empirical work in psychology, I observe that many of the practical difficulties law typically addresses are difficulties that have part of their root in biases to which we are systematically susceptible in the settings of our daily activity. I argue that the frequent presence of those biases in contexts of activity which law regulates, and the pivotal role law has in counteracting them, emphatically militate against the weighing model and call for its rejection. (shrink)

This article supports H. L. A. Hart's “any reasons” thesis (defended consistently from the first edition of The Concept of Law in 1961 to the Postscript to the second edition of 1994) that legal officials may accept law for any reasons, including non‐moral reasons. I develop a conception of non‐moral aesthetic ideals of official conduct which may provide legal officials with reasons to accept and apply even morally iniquitous law. I use this conception in order to rebut Gerald Postema's and (...) Joseph Raz's criticisms of Hart's view, and suggest that my revisions offer reasons for renewed confidence in Hart's account of law's normativity. (shrink)

In 1935, the Nazi government introduced what came to be known as the abrogation of the pro- hibition of analogy. This measure, a feature of the new penal law, required judges to stray from the letter of the written law and to consider instead whether an action was worthy of pun- ishment according to the ‘sound perception of the people’ and the ‘underlying principle’ of existing criminal statutes. In discussions of Nazi law, an almost unanimous conclusion is that a system (...) of criminal law ought not to contain legislation of this sort. This conclusion is often based on how the abro- gation relates to the normative claim that the law ought to be predictable. In particular, it has been argued that since the law ought to be predictable, and since this type of analogy legis- lation implied, caused or contributed to the diminution of the law’s predictability, this type of legislation ought to be prohibited. In this paper, we argue that this argument is not entirely correct. While we believe that the law ought to be predictable and that there is evidence for the claim that the Nazis’ intro- duction of analogical reasoning implied, caused, or contributed to a diminution of predictability, this fact is logically too weak to ground the conclusion that necessarily a penal system ought not to contain legislation of this kind. Despite the undeniable wickedness of the Nazi penal system, this type of analogical reasoning can be made consistent with the pre- dictability of the law. We argue that consistency of this sort depends on whether the use of analogy is supplemented by certain contextual background conditions. The occurrence of these conditions blocks an inference from the fact that the law ought to be predictable to the conclusion that a penal system ought not to allow for this type of analogical reasoning. (shrink)

Understanding the nature of social normativity is important for contemporary analytical legal philosophy. For one, such an account may help articulate the form of the social conventions that are said to be at the foundations of the rule of recognition. This paper argues that accounts of the nature of social normativity ought not to be based on the idea that social life is governed or regulated by norms. Rather, accounts of social normativity ought to be centred on the notion of (...) how persons learn (and unlearn) what they come to anticipate. The first part of the paper offers some illustrations of such an account. The second part of the paper shows how social normativity so conceived can avoid some of the problems that bedevil the currently dominant view (or assumption) that social life is regulated or governed by norms. These problems include, first, difficulties associated with how much deliberative reflection and awareness to demand from participants in social life (accounts of social normativity are often said to be unrealistic or hyper-committal for demanding too much of both, which is not a criticism that can be made of the account offered here); and second, difficulties caused by assuming or positing that there can be a fact of the matter, unmediated by the evaluation or judgement of persons, as to whether or not some action is correct or incorrect on the basis that it merely conforms (or not, as the case may be) to some norm or set of norms (which is not an assumption made or a position endorsed by the account offered here). The paper does not aim to provide a comprehensive statement of the alternative view of social normativity. Rather, it seeks merely to introduce it and to suggest some of the ways in which it improves on the currently dominant view. (shrink)

Applied ontology is the attempt to put to use the rigorous tools of philosophical ontology in the development of category systems which can be of use in the formalization and systematization of knowledge of a given domain. In what follows we shall sketch some elements of the ontology of legal and socio-political institutions, paying attention especially to the normativity involved in such institutions. We shall see that there is more than one type of normativity, but that this fact that has (...) often been ignored in standard attempts by philosophers to build ontologies of legal and other socio-political entities. In order to provide a sound system of categories for legal and socio-political institutions and entities, however, the manifold of normativity needs to be addressed. The classical examples of normative statements have been moral propositions; they do not merely describe states of affairs; they tell us how states of affairs ought to be. The distinction between how things are and how they ought to be is the basis of the distinction between fact and value. Analytic philosophers for a long time shunned discussions of normativity and ethics. They considered ethical statements as pseudo-propositions, or as expressions of pro- or con-attitudes of no theoretical significance.1 Nowadays, in contrast, prominent analytic philosophers discuss normative problems and there are important books written by such philosophers on topics such as law and justice. Here we pay attention to three seminal thinkers in this development: H. L. A. Hart, John Rawls, and John R. Searle in concerning ourselves especially with the way in which they deal with the issue of normativity. Hart is, within the context of recent analytic philosophy, the most important philosopher of law, Rawls the most.. (shrink)

The paper argues for viewing legal validityas a doxastic obligation, i.e. as the obligation toaccept a rule in legal reasoning. This notion of legalvalidity is shown to be both sufficient for thelaywers' needs and neutral in regard to varioustheories of the grounds of validity, i.e. theoriesintended to identify what rules are legally valid, byproposing different grounds for attributing validity.All of these theories, rather then being alternativedefinitions of validity, presuppose the notion hereprovided.This notion is purely normative, but it allows for theconstruction (...) of theories of the grounds of validitywhich give due importance to social expectations andinstitutions. As an example of how this may happen,one such theory is also provided. This theory, whichis presented through a detailed example of a judicialdebate, is based upon the recognition of the(instrumental) value of co-ordination, as thenecessary way to achieve the most valuable purposes ofthe law. (shrink)

This book explores the interrelation of facts and norms. How does law originate in the first place? What lies at the roots of this phenomenon? How is it preserved? And how does it come to an end? Questions like these led Georg Jellinek to speak of the “normative force of the factual” in the early 20th century, emphasizing the human tendency to infer rules from recurring events, and to perceive a certain practice not only as a fact but as a (...) norm; a norm which not only allows us to distinguish regularity from irregularity, but at the same time, to treat deviances as transgressions. Today, Jellinek’s concept still provides astonishing insights on the dichotomy of “is” and “ought to be”, the emergence of the normative, the efficacy and the defeasibility of norms, and the distinct character of what legal theorists refer to as “normativity”. It leads us back to early legal history, it connects anthropology and legal theory, and it demonstrates the interdependence of law and the social sciences. In short: it invites us to fundamentally reassess the interrelation of facts and norms from various perspectives. The contributing authors to this volume have accepted that invitation. (shrink)

Within science technology and society studies the focus has long been on descriptive microanalyses. Several authors have raised the issue of the normative implications of the findings of research into socio-technical devices and infrastructures, while some claim that material artifacts have moral significance or should even be regarded as moral actors. In this contribution the normative impact of technologies is investigated and compared with the normative impact of legal norms, arguing that a generic concept of normativity is needed that does (...) not depend on the intention of whoever designed either a law or a technology. Furthermore this contribution develops the idea that modern law, which has been mediated by the technologies of the script and the printing press, may need to rearticulate its basic tenets into emerging technologies in order to sustain what has been called the paradox of the 'Rechtsstaat'. (shrink)