The Normativity of Law

Main source: Marmor, Andrei, “The Nature of Law”, The Stanford Encyclopedia of Philosophy (Winter 2011 Edition), Edward N. Zalta (ed.), URL = .

The Normativity of Law in the United States

Throughout human history the law has been known as a coercive institution, enforcing its practical demands on its subjects by means of threats and violence. This conspicuous feature of law made it very tempting for some philosophers to assume that the normativity of law resides in its coercive aspect. Even within the legal positivist tradition, however, the coercive aspect of the law has given rise to fierce controversies. Early legal Positivists, such as Bentham and Austin, maintained that coercion is an essential feature of law, distinguishing it from other normative domains. Legal Positivists in the 20th century have tended to deny this, claiming that coercion is neither essential to law, nor, actually, pivotal to the fulfillment of its functions in society.

There are several issues entangled here, and we should carefully separate them. John Austin famously maintained that each and every legal norm, as such, must comprise a threat backed by sanction. This involves at least two separate claims: In one sense, it can be understood as a thesis about the concept of law, maintaining that what we call ‘law’ can only be those norms which are backed by sanctions of the political sovereign. In a second, though not less problematic sense, the intimate connection between the law and the threat of sanctions is a thesis about the normativity of law. Basically, it is a reductionist thesis about law’s normative character, maintaining that the normativity of law consists in the subjects’ ability to predict the chances of incurring punishment or evil.

In addition to this particular controversy, there is the further question, concerning the relative importance of sanctions for the ability of law to fulfill its social functions. Hans Kelsen, for instance, maintained that the monopolization of violence in society, and the law’s ability to impose its demands by violent means, is the most important of law’s functions in society. Twentieth century legal Positivists, like H.L.A. Hart and Joseph Raz, deny this, maintaining that the coercive aspect of law is much more marginal than their predecessors assumed. Once again, the controversy here is actually twofold: is coercion essential to what the law does? And even if it is not deemed essential, how important it is, compared with the other functions law fulfills in our lives?

Austin’s reductionist account of the normativity of law, maintaining that the normative aspect of law simply consists in the subjects’ ability to predict sanctions, was discussed extensively, and fiercely criticized, by H.L.A. Hart. Hart’s fundamental objection to Austin’s reductionist account of law’s normativity is, on his own account, ‘that the predictive interpretation obscures the fact that, where rules exist, deviations from them are not merely grounds for prediction that hostile reactions will follow…. but are also deemed to be a reason or justification for such reaction and for applying the sanctions.’ (The Concept of Law, at p. 82) This emphasis on the reason-giving function of rules is surely correct, but perhaps not enough. Supporters of the predictive account could claim that it only begs the further question of why people should regard the rules of law as reasons or justifications for actions. If it is, for example, only because the law happens to be an efficient sanction-provider, then the predictive model of the normativity of law may turn out to be correct after all. In other words, Hart’s fundamental objection to the predictive model is actually a result of his vision about the main functions of law in society, holding, contra Austin and Kelsen, that those functions are not exclusively related to the ability of the law to impose sanctions.

It is arguable, however, that law’s functions in our culture are more closely related to its coercive aspect than Hart seems to have assumed. Contemporary use of ‘game theory’ in the law tends to show that the rationale of a great variety of legal arrangements can be best explained by the function of law in solving problems of opportunism, like the so called Prisoner’s Dilemma situations. In these cases, the law’s main role is, indeed, one of providing coercive measures. Be this as it may, we should probably refrain from endorsing Austin’s or Kelsen’s position that providing sanctions is law’s only function in society. Solving recurrent and multiple coordination problems, setting standards for desirable behavior, proclaiming symbolic expressions of communal values, resolving disputes about facts, and such, are important functions which the law serves in our society, and those have very little to do with law’s coercive aspect and its sanction-providing functions.

The extent to which law can actually guide behavior by providing its subjects with reasons for action has been questioned by a very influential group of legal scholars in the first half of the 20th century, called the Legal Realism school. American Legal Realists claimed that our ability to predict the outcomes of legal cases on the basis of the rules of law is rather limited. In the more difficult cases which tend to be adjudicated in the appellate courts, legal rules, by themselves, are radically indeterminate as to the outcome of the cases. The Legal Realists thought that lawyers who are interested in the predictive question of what the courts will actually decide in difficult cases need to engage in sociological and psychological research, striving to develop theoretical tools that would enable us to predict legal outcomes. Thus Legal Realism was mainly an attempt to introduce the social sciences into the domain of jurisprudence for predictive purposes. To what extent this scientific project succeeded is a matter of controversy. Be this as it may, Legal Realism paid very little attention to the question of the normativity of law, that is, to the question of how the law does guide behavior in those cases in which it seems to be determinate enough.

A much more promising approach to the normativity of law is found in Joseph Raz’s theory of authority, which also shows how such a theory about the normativity of law entails important conclusions with respect to the conditions of legal validity. The basic insight of Raz’s argument is that the law is an authoritative social institution. The law, Raz claims, is a de facto authority. However, it is also essential to law that it must be held to claim legitimate authority. Any particular legal system may fail, of course, in its fulfillment of this claim. But the law is the kind of institution which necessarily claims to be a legitimate authority.

According to Raz, the essential role of authorities in our practical reasoning is to mediate between the putative subjects of the authority and the right reasons which apply to them in the relevant circumstances. An authority is legitimate if and only if it helps its putative subjects to comply better with the right reasons relevant to their actions—i.e., if they are more likely to act in compliance with these reasons by following the authoritative resolution than they would be if they tried to figure out and act on the reasons directly (without the mediating resolution). For example, there may be many reasons that bear on the question of how fast to drive on a particular road—the amount of pedestrian traffic, impending turns in the road, etc.—but drivers may comply better with a balance of those reasons by following the legal speed limit than if they tried to figure out all the trade-offs in the moment. The legitimacy of the legal speed limit would thus be derived from the way in which it aids people in acting in better compliance with the balance of the right reasons.

Now, it follows that for something to be able to claim legitimate authority, it must be of the kind of thing capable of claiming it, namely, capable of fulfilling such a mediating role. What kinds of things can claim legitimate authority? There are at least two such features necessary for authority-capacity: First, for something to be able to claim legitimate authority, it must be the case that its directives are identifiable as authoritative directives, without the necessity of relying on those same reasons which the authoritative directive replaces. If this condition is not met, namely, if it is impossible to identify the authoritative directive as such without relying on those same reasons the authority was meant to rely on then the authority could not fulfill its essential, mediating role. In short, it could not make the practical difference it is there to make. Note that this argument does not concern the efficacy of authorities. The point is not that unless authoritative directives can be recognized as such, authorities could not function effectively. The argument is based on the rationale of authorities within our practical reasoning. Authorities are there to make a practical difference, and they could not make such a difference unless the authority’s directive can be recognized as such without recourse to the reasons it is there to decide upon. In other words, it is nonsensical to have authorities if, to discover what is an authority and what is not, you have to engage in the same reasoning process that reliance on the authority is supposed to replace. Secondly, for something to be able to claim legitimate authority, it must be capable of forming an opinion on how its subjects ought to behave, distinct from the subjects’ own reasoning about their reasons for action. In other words, a practical authority, like law, must be basically personal authority, in the sense that there cannot be an authority without an author.

Raz’s conception of legal authority provides very strong support for Exclusive Legal Positivism because it requires that the law, qua an authoritative resolution, be identifiable on its own terms, that is, without having to rely on those same considerations which the law is there to settle. Therefore a norm is legally valid (i.e. authoritative) only if its validity does not derive from moral or other evaluative considerations about which it is there to settle. Notably, Raz’s theory challenges both Dworkin’s anti-positivist legal theory, and the Inclusive version of Legal Positivism. This challenge, and the controversies it gave rise to, form one of the main topics discussed in contemporary general jurisprudence.

Explaining the rationale of legal authority, however, is not the only component of a theory about the normativity of law. If we hold the Legal Positivist thesis that law is essentially founded on social conventions, another important question arises here: how can a conventional practice give rise to reasons for action and, in particular, to obligations? Some legal philosophers claimed that conventional rules cannot, by themselves, give rise to obligations. As Leslie Green observed, Hart’s ‘view that the fundamental rules [of recognition] are ‘mere conventions’ continues to sit uneasily with any notion of obligation’, and this Green finds troubling, because the rules of recognition point to the ‘sources that judges are legally bound to apply.’ (‘The Concept of Law Revisited’, at p. 1697) The debate here is partly about the conventional nature of the rules of recognition, and partly about the ways in which conventions can figure in our reasons for action. According to one influential theory, inspired by David Lewis, conventional rules emerge as solutions to large-scale and recurrent coordination problems. If the rules of recognition are, indeed, of such a coordination kind, it is relatively easy to explain how they may give rise to obligations. Coordination conventions would be obligatory if the norm subjects have an obligation to solve the coordination problem which initially gave rise to the emergence of the relevant convention. It is doubtful, however, that coordination conventions are at the foundations of law. In certain respects the law may be more like a structured game, or an artistic genre, which are actually constituted by social conventions. Such constitutive conventions are not explicable as solutions to some pre-existing recurrent coordination problem. The conventional rules constituting the game of chess, for example, are not there to solve a coordination problem between potential players. Antecedent to the game of chess, there was no particular coordination problem to solve. The conventional rules of chess constitute the game itself as a kind of social activity people would find worthwhile engaging in. The constitutive conventions partly constitute the values inherent in the emergent social practice. Such values, however, are only there for those who care to see them. Constitutive conventions, by themselves, cannot ground an obligation to engage in the practice they constitute.

From a moral point of view, the rules of recognition, by themselves, cannot be regarded as sources of obligation to follow the law. Whether judges, or anybody else, should or should not respect the rules of recognition of a legal system, is ultimately a moral issue, that can only be resolved by moral arguments (concerning the age old issue of political obligation). And this is more generally so: the existence of a social practice, in itself, does not provide anyone with an obligation to engage in the practice. The rules of recognition only define what the practice is, and they can say nothing on the question of whether one should or should not engage in it. But of course, once one does engage in the practice, playing the judge, as it were, there are legal obligations defined by the rules of the game. In other words, there is nothing special in the idea of a legal obligation to follow the rules of recognition. The judge in a soccer game is equally obliged to follow the rules of his game, and the fact that the game is conventional poses no difficulty from this, let us say, ‘internal-player’s’ perspective. But again, the constitutive rules of soccer cannot settle for anyone the question of whether they should play soccer or not. Similarly, the rules of recognition cannot settle for the judge, or anyone else for that matter, whether they should play by the rules of law, or not. They only tell the judges what the law is. Unlike chess or soccer, however, the law may well be a kind of game that people have an obligation to play, as it were. But if there is such an obligation, it must emerge from external, moral, considerations, that is, from a general moral obligation to obey the law. The complex question of whether there is such a general obligation to obey the law, and whether it depends on certain features of the relevant legal system, is extensively discussed in the literature on political obligation. A complete theory about the normativity of law must encompass these moral issues as well.

Recent challenges to general jurisprudence, and particularly to Legal Positivism, have taken an interesting methodological turn. This methodological turn gained momentum with the publication of Dworkin’s Law’s Empire, arguing that not only the law, as a social practice, is a profoundly interpretative (and thus partly, but necessarily, evaluative in nature), but that any theory about the nature of law is also interpretative in a similar way, and thus, equally evaluative. Many of those who do not necessarily share Dworkin’s views about the interpretative nature of legal theory, or the specifics of his theory of interpretation, have joined him in this methodological skepticism about the possibility of general jurisprudence, that is, about the possibility of developing a theory about that nature of law that would have general application and remain morally neutral. These criticisms tend to focus on H.L.A. Hart’s legal theory, arguing that contra Hart’s explicit aspirations, it is not as ‘descriptive and morally neutral’ as Hart had sought it to be. Most of these theorists now claim that Legal Positivism has always been a normative theory and could only be defended as such.

There are several arguments that purport to establish the essentially normative aspect of Legal Positivism. Perry (2001) argues that any attempt to conceptualize law necessarily requires a choice between different possible ways in which law can be conceptualized, and any choice between these conceptual frameworks would necessarily have to rely on the attribution of some point or function to the law. This, in turn, Perry argues, necessarily involves moral argument. Jeremy Waldron (2001) offers a similar argument: It is a central issue for any theory about the nature of law to determine whether certain types of normative claims are legal or not. Second, Waldron argues, such disputes cannot be rendered sensible without testing the respective theories against our sense of why would it be important whether some norms count as legal and others don’t. Finally, he claims, any answer to this ‘Why’ question is bound to be a normative one, relying on some moral political theory about what makes law good and worthy of our appreciation. Therefore, general jurisprudence necessarily relies on some normative, moral, considerations. Both of these views, and similar ones, purport to rely on Hart’s own insistence that a normative social practice, like law, cannot be understood without taking into account the participants’ internal point of view, a point of view that is essentially normative, rationalizing the ways in which the participants regard the law as reasons for their actions.

There are some complex and rather subtle issues involved in this methodological controversy. It is common ground to all these theories, including Hart’s, that any attempt to understand what the law is, must rely on a fairly elaborate understanding of law’s functions in society, and of the ways in which the law is constituted to fulfill those functions. Furthermore, it seems very plausible to maintain, as Hart himself suggested, that we cannot understand law without understanding the ways in which it is typically regarded by those whose law it is, namely, by those who normally regard the law as giving reasons for their actions. This common point of departure, however, leads to very different conclusions: Hart believed that none of this precludes jurisprudence from remaining basically descriptive and morally neutral; theorists like Dworkin, Perry, Waldron, and others (e.g., Moore 1998), on the other hand, reach the opposite conclusion. They conclude that it shows that jurisprudence necessarily relies on moral considerations. What is mostly at stake here is the question of whether understanding the point, or purpose, or function, of a social practice (or any normative system), necessarily collapses into certain judgments about its worth or value. Hart claimed that we can come to understand the point of law, its main functions in society, and the ways in which it gives reasons for action, without necessarily forming any particular moral judgments of our own about those reasons, functions, etc. His critics obviously deny this, arguing that this separation between an account of what the function of X is, or what its main point is, etc., cannot be given without a moral argument. Whether this is, indeed, the case, is an issue, currently forming one of the main controversies in theorizing about the nature of law.
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