Making Law Bind: Legal Normativity as a Dynamic Concept
S. Delacroix, 'Making law bind: legal normativity as a dynamic concept', in M. Del Mar (ed.), New waves in philosophy of law, Palgrave Macmillan, 2011, 147-160
18 Pages Posted: 24 Jul 2021
Date Written: November 5, 2010
Rather than considering law’s normative dimension as a static property that can be `verified’ if and only if a certain number of conditions obtain, I endeavour to explain the way in which law’s normativity needs to be `brought about’ on a daily basis. This leads me to outline a genealogy of legal normativity: instead of taking law’s normative dimension as a given, it inquires into what makes it possible in the first place; instead of stripping it down to its `essential’ bones, it celebrates its contingent dimension.
To be confronted with a ‘norm’ does not necessarily entail that one approves (or disapproves) of it, that one will follow it, or that one has an obligation to do so. All it entails is that one is either committed to it (whether that commitment is the product of an act of will or the culmination of a set of circumstances) or that it is part of a system deemed normative in virtue of some people’s commitment to it. If that system, like law, typically serves a moral task, one cannot make do with the ‘systemic’ commitment of a few to understand its normativity: one has to build our daily endeavour to re-articulate that moral task into one’s account of normativity, whether that story be called a genealogy or otherwise.
Keywords: legal normativity, ethical agency, agency, legal positivism, natural law
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