Rules and Normativity in Law

Research output: Chapter in Book/Report/Conference proceedingChapter

3 Scopus citations

Abstract

Two of the persistent questions in the philosophy of law concern the relationship between law and rules and the relationship between law and morality. Both topics are most sharply raised through the topic of “legal normativity.” Many contemporary legal theorists purport to “explain legal normativity,” but often fail to articulate what it means to say that law is normative or in what way that property requires explanation. As a way of resolving some problems of legal normativity, this article offers a reading of Hans Kelsen’s legal theory as a limited claim about the logic of normative claims: that when one reads the actions of legal officials normatively, this assumes or presupposes the validity of the foundational norm of that legal system, a Kelsenian “Basic Norm.” This article also looks at a different aspect of legal normativity through a focus on the work of H. L. A. Hart. Legal norms frequently prescribe what one ought to do or ought not to do. However, the rush of legal theorists to describe law as thus making moral claims seems ungrounded and unnecessary.

Original languageEnglish (US)
Title of host publicationLaw and Philosophy Library
PublisherSpringer Science and Business Media B.V.
Pages125-146
Number of pages22
DOIs
StatePublished - 2015

Publication series

NameLaw and Philosophy Library
Volume111
ISSN (Print)1572-4395
ISSN (Electronic)2215-0315

Bibliographical note

Funding Information:
I am grateful for the comments and suggestions of Sean Coyle, William A. Edmundson, John Finnis, Andrew Halpin, Stanley L. Paulson, Ralf Poscher, and Frederick Schauer. An earlier version of portions of this article will be published as Bix (2014), and a version of the article was presented at Hebrew University; I am grateful for the comments and suggestions of those who attended the Hebrew University talk and the Krakow Conference.

Publisher Copyright:
© 2015, Springer International Publishing Switzerland.

Keywords

  • Hart
  • Kelsen
  • Law and morality
  • Normativity
  • Rules

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