Kelsen and Hart on the Normativity of Law
PERSPECTIVES ON JURISPRUDENCE: ESSAYS IN HONOUR OF JES BJARUP, Peter Wahlgren, ed., pp. 397-414, 2005
18 Pages Posted: 8 Aug 2006
The problem about the normativity of law - that is, the problem of accounting for the nature of the legal ought, the law's normative force, or, if you will, the nature of legal reasons for action - is in my view the most serious if not the only serious question facing legal positivists. The problem, I have argued elsewhere, is that although legal positivists can account for law's normativity in (what I shall call) the strictly legal sense, but not in (what I shall call) the moral sense, such an account is difficult to combine with the thesis that law necessarily claims to trump moral and other reasons for action. But, one may wonder, if normativity in the strictly legal sense is so problematic, why have first-rate legal thinkers like Hans Kelsen and Herbert Hart expended so much energy in trying to account for the normativity of law in this sense? Were they perhaps really concerned with normativity in the moral sense? I don't think so. I think they were concerned with normativity in the strictly legal sense. And in this article I am going to consider Kelsen's and Hart's analyses of the normativity problem in order to show that both Kelsen and Hart were indeed concerned with normativity in the strictly legal sense. I am also going to argue that their accounts can be combined with a qualified version of the thesis that the law necessarily claims to trump moral and other reasons for action, while suggesting that the normativity of law in the strictly legal sense is not so important a characteristic of law as Kelsen and Hart seem to have thought.
Keywords: Kelsen, Hart, Normativity of Law
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