Normativity of Law

Books and Papers

• Jonny Anomaly & Geoffrey Brennan (2014). Social Norms, The Invisible Hand, and the Law. University of Queensland Law Journal 33 (2).
• Stefano Bertea & George Pavlakos (eds.) (2011). New Essays on the Normativity of Law. Hart Pub..
• Brian Bix (2006). Legal Positivism and ‘Explaining’ Normativity and Authority. American Philosophical Association Newsletter 5 (2 (Spring 2006)):5-9. 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 (…)
• Michael Cholbi (2012). Getting to the Rule of Law. [REVIEW] Law and Politics Book Review 22 (1):266-269.
• René González de la Vega (2013). The Paradox of the Normativity of Law. Problema. Anuario de Filosofía y Teoria Del Derecho 7:63-79.
• Sylvie Delacroix (2011). Making Law Bind : Legal Normativity as a Dynamic Concept. In Maksymilian Del Mar (ed.), New Waves in Philosophy of Law. Palgrave Macmillan
• Sylvie Delacroix (2006). Legal Norms and Normativity: An Essay in Genealogy. Hart.
• Sylvie Delacroix (2004). Hart’s and Kelsen’s Concepts of Normativity Contrasted. Ratio Juris 17 (4):501-520.
• Julie Dickson (2006). Interpreting Normativity. In J. W. Harris, Timothy Andrew Orville Endicott, Joshua Getzler & Edwin Peel (eds.), Properties of Law: Essays in Honour of Jim Harris. Oxford University Press
• Gerald Dworkin (2002). Contractualism and the Normativity of Principles. Ethics 112 (3):471-482. This is a study of the question of whether moral principles, as justified by a contractualist scheme, such as Scanlon’s, are binding on persons, i.e., give them reasons to act in accordance with such principles. I argue that for those agents who meet the motivational conditions that Scanlon lays down, i.e., those who seek to reach agreement with others on principles that are not rejectable, such principles are binding. But on those who do not meet the motivational condition the principles (…)
• Kenneth M. Ehrenberg. Law as Plan and Artifact. Jurisprudence 7. Scott Shapiro’s planning theory of law is assessed in terms of its methodology. Focusing on problems with Shapiro’s solution to the problem of the persistence of law and his use of the notion of law as self-certifying, I argue that the theory would be better served by embracing law’s artifactual nature via a better account of its institutionality.
• Kenneth M. Ehrenberg (2016). The Functions of Law. Oxford University Press. What is the nature of law and what is the best way to discover it? This book argues that law is best understood in terms of the social functions it performs wherever it is found in human society. In order to support this claim, law is explained as a kind of institution and as a kind of artefact. To say that it is an institution is to say that it is designed for creating and conferring special statuses to people so (…)
• Kenneth M. Ehrenberg (2015). Law’s Artifactual Nature: How Legal Institutions Generate Normativity. In George Pavlakos & Veronica Rodriguez-Blanco (eds.), Reasons and Intentions in Law and Practical Agency. Cambridge University Press 247-266. I argue that law is best understood as an institutionalized abstract artifact. Using the ideas of John Searle on institutions and Amie Thomasson on artifacts, I show how the law is capable of generating new reasons for action, arguing against recent work by David Enoch who holds that legal reason-giving is ultimately a form of triggering conditional reasons.
• Kenneth M. Ehrenberg (2013). Law’s Authority is Not a Claim to Preemption. In Wilfrid J. Waluchow & Stefan Sciaraffa (eds.), Philosophical Foundations of the Nature of Law. Oxford University Press 51. Joseph Raz argues that legal authority includes a claim by the law to replace subjects’ contrary reasons. I reply that this cannot be squared with the existence of choice-of-evils defenses to criminal prosecutions, nor with the view that the law has gaps (which Raz shares).
• David Enoch (2011). Reason-Giving and the Law. In Leslie Green & Brian Leiter (eds.), Oxford Studies in Philosophy of Law. Oxford University Press. 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[1]. 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 (…)
• Alexander A. Guerrero (2015). Deliberation, Responsibility, and Excusing Mistakes of Law. Jurisprudence 6 (1):81-94.
• Jaap Hage (2011). Elusive Normativity. Netherlands Journal of Legal Philosophy 2:146-168.
• James W. Harris (1996). Kelsen’s Pallid Normativity. Ratio Juris 9 (1):94-117.
• Mireille Hildebrandt (2008). Legal and Technological Normativity. Techne 12 (3):169-183. 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 (…)
• Andrew Ingram (2014). Breaking Laws to Fix Broken Windows: A Revisionist Take on Order Maintenance Policing. Berkeley Journal of Criminal Law 19 (2):112-152. Today, there is a family of celebrated police strategies that teach the importance of cracking down on petty crime and urban nuisance as the key to effective crime control. Under the “broken windows” appellation, this strategy is linked in the public mind with New York City and the alleged successes of its police department in reducing the rate of crime over the past two decades. This paper is critical of such order maintenance approaches to policing: I argue that infringements of (…)
• Leonard Kahn (2012). Review Article: Legal Theory, Law, and Normativity. Journal of Moral Philosophy 9 (1):115-126. 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 (…)
• Matthias Klatt (2008). Making the Law Explicit: The Normativity of Legal Argumentation. Hart Pub..
• Larry Krasnoff (1998). Consensus, Stability, and Normativity in Rawl’s Political Liberalism. Journal of Philosophy 95 (6):269-292.
• John-Michael Kuczynski (2016). Right and Wrong. Amazon Digital Services LLC. In this book, it is shown that moral integrity is necessary for psychological integrity and, therefore, that it is not possible to live well without living ethically. In the process of establishing this profound truth, Dr. Kuczynski explains what right and wrong are and how we know the difference between the two.
• M. Laclau (1987). Windelband’s Notion of Normativity. Rechtstheorie 18 (3):335-343.
• Maksymilian T. Madelr, The Problem of Normativity in Contemporary Legal Theory. This paper examines the problem of normativity in contemporary legal theory, paying particular attention to the relationship between the conception of the problem and related explanations of behaviour. The first part of the paper shows how the problem of normativity, conceived of as a matter of determining how legal norms function as reasons for action, is linked to an explanation of behaviour that is posited or assumed to be capable of being guided by reasons.
• Marcin Matczak, Three Types of Intention in Lawmaking. The nature of legislative intent remains a subject of vigourous debate in legal theory. A conspicuous feature of the debate is that its participants perceive the intent in many different ways. Some see it as an intention concerning the meaning of the words used in legal text, others as a will to enact the law, others still as a set of expectations regarding the law’s impact on reality. In this paper I identify the reason for such diverse perceptions.
• Noëlle McAfee (2008). Democracy’s Normativity. Journal of Speculative Philosophy 22 (4):pp. 257-265.
• Stanley L. Paulson (2012). A ‘Justified Normativity’ Thesis in Hans Kelsen’s Pure Theory of Law? : Rejoinders to Robert Alexy and Joseph Raz. In Matthias Klatt (ed.), Institutionalized Reason: The Jurisprudence of Robert Alexy. Oxford University Press.
• Cindy Phillips. The Presumption of Liberty and Coerciveness of Law. Jurisprudence. A dominant belief in political philosophy is that states must be entitled to authorize the use of coercion in order to justifiably coerce its subjects (Lamond 2001, Ripstein 2004). Call this view the entitlement view. On this view, for a state to justifiably coerce its subjects, a necessary condition is that it is entitled (or has a right) to authorize the use of coercion. Skeptics hold the entitlement view (Simmons 1979, Wolff 1970).
• Anthony Reeves (2014). The Binding Force of Nascent Norms of International Law. Canadian Journal of Law and Jurisprudence 28 (1):145-166. Demonstrating that a developing norm is not yet well established in international law is frequently thought to show that states are not bound by the norm as law. More precisely, showing that a purported international legal norm has only limited support from well-established international legal sources is normally seen as sufficient to rebut an obligation on the part of subjects to comply with the norm in virtue of its legal status. I contend that this view is mistaken.
• Anthony R. Reeves. Reasons of Law: Dworkin on the Legal Decision. Jurisprudence:1-21.
• Ronald Dworkin once identified the basic question of jurisprudence as: ‘What, in general, is a good reason for a decision by a court of law?’ I argue that, over the course of his career, Dworkin gave an essentially sound answer to this question. In fact, he gave a correct answer to a broader question: ‘What is a good reason for a legal decision, generally?’ For judges, officials of executive and administrative agencies, lawyers, non-governmental organizations, and ordinary subjects acting in the (…)
• Anthony R. Reeves (2015). Practical Reason and Legality: Instrumental Political Authority Without Exclusion. Law and Philosophy 34 (3):257-298. In a morally non-ideal legal system, how can law bind its subjects? How can the fact of a norm’s legality make it the case that practical reason is bound by that norm? Moreover, in such circumstances, what is the extent and character of law’s bindingness? I defend here an answer to these questions. I present a non-ideal theory of legality’s ability to produce binding reasons for action. It is not a descriptive account of law and its claims, it is a (…)
• Veronica Rodriguez-Blanco (2012). Does Kelsen’s Notion of Legal Normativity Rest on a Mistake? Law and Philosophy 31 (6):725-752.
• Veronica Rodriguez-Blanco (2012). Social and Justified Legal Normativity: Unlocking the Mystery of the Relationship. Ratio Juris 25 (3):409-433. Can Hart’s non-cognitivism be reconciled with his rejection of the predictive and sanction-based explanations of law? This paper analyses Hart’s notion of the internal point of view and focuses on the notion of acceptance of a rule along the lines of a non-cognitivist understanding of intentional actions. It is argued that a non-cognitivist analysis of acceptance of rules is incomplete and parasitic on a more basic or primary model of acceptance that does not involve mental states.
• Corrado Roversi, Five Kinds of Perspectives on Legal Institutions. There is at least one immediate sense in which legal discourse is perspectival: it qualifies acts and facts in the world on the basis of rules. Legal concepts are for the most part constituted by rules, both in the sense that rules define these concepts’ semantic content and that, in order to engage with legal practice, we must act according to those rules, not necessarily complying with them but at least having them in mind.
• Torben Spaak (2003). Legal Positivism, Law’s Normativity, and the Normative Force of Legal Justification. Ratio Juris 16 (4):469-485. 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 (…)
• Giuliano Torrengo & Achille C. Varzi (2006). Crimes and Punishments. Philosophia 34 (4):395-404. Every criminal act ought to be matched by a corresponding punishment, or so we may suppose, and every punishment ought to reflect a criminal act. We know how to count punishments. But how do we count crimes? In particular, how does our notion of a criminal action depend on whether the prohibited action is an activity, an accomplishment, an achievement, or a state?.
• Stephen P. Turner (2007). Explaining Normativity. Philosophy of the Social Sciences 37 (1):57-73. In this reply, I raise some questions about the account of “normativity” given by Joseph Rouse. I discuss the historical form of disputes over normativity in such thinkers as Kelsen and show that the standard issue with these accounts is over the question of whether there is anything added to the normal stream of explanation by the problem of normativity. I suggest that Rouse’s attempt to avoid the issues that arise with substantive explanatory theories of practices of the kind criticized (…)
• Jacob Weinrib (2015). Dimensions of Dignity: The Theory and Practice of Modern Constitutional Law. Cambridge University Press. In an age of constitutional revolutions and reforms, theory and practice are moving in opposite directions. As a matter of constitutional practice, human dignity has emerged in jurisdictions around the world as the organizing idea of a groundbreaking paradigm. By reconfiguring constitutional norms, institutional structures and legal doctrines, this paradigm transforms human dignity from a mere moral claim into a legal norm that persons have standing to vindicate. As a matter of constitutional theory, however, human dignity remains an enigmatic idea. (…)
• Leo Zaibert & Barry Smith, Legal Ontology and the Problem of Normativity. The Analytic-Continental Divide, Conference, University of Tel Aviv. 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 (…)

Resources

See Also

• Causation
• Evidence
• Proof
• Legal Ethics
• Legal Medicine
• Neuroscience
• Legal Rights
• Philosophy of Law
• Sociological School
• Norm
• Philosophy
• Jurisprudence of Concepts
• Jurispruedence
• Moral
• Law of Reason
• Liberty
• Jurisprudential Thought