Legal Positivism, Conventionalism, and the Normativity of Law
52 Pages Posted: 2 Jun 2017
Date Written: June 1, 2017
The aim of this article is to investigate and 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 endeavor. As I shall explain, I do not believe that it is possible to offer such an account; and to illustrate the difficulties involved in trying to do so, I am going to consider the accounts of the normativity of law proposed by three prominent jurisprudents, who all work in the tradition of legal positivism, namely, Hans Kelsen, Gerald Postema, and Andrei Marmor.
I argue (A) that we need to distinguish carefully between (a) the problem of accounting for the normativity of law, conceived as a necessary property of law, and (b) the problem of accounting for the use of normative legal language on the part of judges, attorneys, legal scholars, and others; (B) that the contemporary debate about the normativity of law, which mainly concerns (a), is in substance, if not in form, more or less identical to the old debate between legal positivists and non-positivists; (C) that one simply cannot account for the normativity of law, conceived along the lines of (a), within the framework of legal positivism, whether or not one invokes the idea of a social convention, and that the problem of the normativity of law thus conceived and considered within the framework of legal positivism, is not an open, and therefore not a very interesting, legal-philosophical question; (D) that the important question for a legal positivist is whether a given legal order (or legal system) is in fact normative, in roughly the sense of justified (or authoritative) normativity (a notion to be explained below), and that to determine whether this is so, one needs to consider the content and the administration of this legal order; and (E) that the idea of conditional normativity, or normativity from a point of view, although of considerable interest when discussing (b), is of little or no interest to those who are concerned with (a). As regards claim (C), I argue, more specifically, (C1) that Kelsen’s theory of the basic norm offers no solution to (a), because it offers nothing more than normativity from a point of view, and that it is better understood as aiming to solve (b), (C2) that Gerald Postema’s coordination convention account, although in many ways a very fine account, cannot (as Postema is well aware of) generate obligations for the citizens, as distinguished from the legal officials, and (C3) that Andrei Marmor’s constitutive convention account, which capitalizes on the idea of conditional normativity, does not and cannot take things further than Kelsen’s basic-norm account does.
On route to establishing claims (A)-(E), I also argue (i) that when discussing (α), we should focus on the level of legal orders (legal systems), not on the level of individual legal norms, (ii) that the claim that law is necessarily normative is to be understood as the conceptual claim that necessarily, if x is a legal norm, x is normative, not as the essentialist claim that if x is a legal norm, x is necessarily normative, and (iii) that we should think of the concept of a legal ‘ought’ as having the function of connecting grounds (or conditions) and consequences in legal norms and of the import of the concept of ought (or, roughly, the meaning of the word ‘ought’) as being the same in different fields. Furthermore, I argue (iv) that we should distinguish between different grades (or degrees) of normativity; (v) that the most interesting grade of normativity when discussing (α) is what Joseph Raz has called justified normativity; and (vi) that we may think of moral philosopher David Copp’s notion of authoritative normativity as an illuminating specification of the somewhat loose idea of justified normativity.
Keywords: Legal positivism, conventionalism, normativity, Kelsen, Postema, Marmor, basic norm, detached statements, coordination convention, constitutive convention, conditional normativity
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