Abstract
Many contemporary philosophers of law believe that one of the central problems of the field is that of explaining the normativity of law. But it is not clear that this is a problem at all, or at least that it is different from the problems that have been exhaustively addressed and analyzed for generations. Once we deconstruct the alleged problem of normativity into its component parts, we can appreciate that legal normativity is either conditional, or is instead but a small variation on age-old questions about the moral obligation, if any, to obey the law simply because of its status as law. There are interesting modern versions of these positions, but in the final analysis David Enoch is correct in labeling the problem of legal normativity as a “pseudo-problem.”
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Notes
- 1.
This framing of the question tracks Shapiro (2011), pp. 25–50. See also Coleman (2001a), pp. 89–90, Coleman (1996, 2001b), Perry (2001). Couching the problems of law’s authority and law’s reason-giving capacity as problems of normativity can be traced largely to Hart (1982). It is worth noting that the (alleged) problem of normativity that I address in this paper is almost completely unrelated to the questions labeled as questions of normativity arising within Kelsenian and related legal theories. See Bjarup (2005).
- 2.
Understanding authority as content-independent is central to understanding the very idea of authority. When we treat a directive as providing a reason for action because of its source and not its content, we have treated that source as an authority, and the directive emanating from that source as authoritative solely because of its source. Hart (1982), Schauer (2008), Shapiro (2002). On content-independent reasons more generally, see Sciaraffa (2009).
- 3.
An excellent analytical overview of the literature on the moral obligation to obey the law is (Edmundson 2004).
- 4.
Some would say “prima facie,” and others would say “pro tanto,” but the basic idea is the same—the existence of an applicable duty or obligation that is less than absolute may fall in the face of conflicting duties or obligations, but such overridable duties or obligations nevertheless provide reasons for action that would otherwise not exist (Loewer and Belzer 1991).
- 5.
- 6.
- 7.
The terminology of “constitutive” and “regulatory” comes from Searle (1969), pp. 33–42.
- 8.
An especially valuable commentary on Raz and on the ability of law to claim is offered by John Gardner (2012).
- 9.
- 10.
It is crucial to distinguish genuine compliance from mere consistency. In many instances, agents engage in acts—refraining from murder, for example—that are consistent with law’s commands but are not motivated by the existence of law. If we are attempting to focus on law’s normative power, therefore, we must look not at the ubiquitous cases of behavior that happens to be consistent with the law, but instead at the smaller class of acts that are undertaken because of the law, as I explain in (Schauer 2015, pp. 48–56).
- 11.
A valuable response is Rodriguez-Blanco (2013).
- 12.
- 13.
For my response, see (Schauer 2016).
- 14.
For a compatible conclusion, see (Bix 2013).
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Acknowledgments
This paper was presented first at the workshop on “Law and Normativity: Cross-Disciplinary Dialogues in a Troubled Relation,” held at Queen Mary University of London on 19 May 2017 and organized by Noam Gur, and then at the special workshop on normativity organized by Christoph Bezemek and Nicoletta Ladavac at the IVR Congress in Lisbon on 18 July 2017. A previous version of this paper has been published in “Lo Stato” (2017) 8.
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Schauer, F. (2019). On the Alleged Problem of Legal Normativity. In: Bersier Ladavac, N., Bezemek, C., Schauer, F. (eds) The Normative Force of the Factual. Law and Philosophy Library, vol 130. Springer, Cham. https://doi.org/10.1007/978-3-030-18929-7_12
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