Jurisprudence as Normative Science
Introduction: Defining the Problem
Before defining what exactly jurisprudence as a normative science means it is necessary to clarify how the term “jurisprudence” will be understood in this entry. For reasons of space, we shall limit ourselves here to analyzing the concept of jurisprudence exclusively from the traditional viewpoint of Continental legal culture – where “jurisprudence” basically amounts to a general theory of positive law, to wit, of legal norms and legal orders (in this context we shall not consider the relationship among jurisprudence, sociology of law, and legal dogmatics) – and not according to the more sociological and pragmatic standpoint of the Anglo-American, Common Law legal culture. Nonetheless, there is an Anglophone approach to philosophy of law, to which only a brief reference will be made, represented by analytical jurisprudence, which engages in a conceptual analysis of the concept of law in the search for a general theory of law and corresponds, so far as contemporary legal thinking is concerned, to the Hart-Raz-Coleman–Dickinson-Shapiro tradition.
Foundations of Normativity: Kelsen–Hart–Raz–Austin
Jurisprudence as normative science is the study of legal norms, or, to put it slightly differently, legal oughts. Jurisprudence as normative science does not study what law ought to be, but does study how law tells others – the subjects of law, or judges – what they ought to do. In studying normative orders, jurisprudence as normative science seeks to explain and analyze how normative orders do operate, as opposed to how they ought to operate. In that sense, the Continental normative tradition is still within the positivist tradition, although with a very different focus from the positivist approaches of John Austin, H. L. A. Hart, Joseph Raz, and others in the Anglophone analytic tradition. Within Continental law, the normative character of law, that is of legal systems with patterns of command and obedience, and characterized by the role of coercive force and by the threat of sanctions, was theorized by the Austrian jurist Hans Kelsen (1881–1973), whereas the two main figures for a revised form of legal positivism in the Anglo-American analytic philosophy of law tradition are H. L. A. Hart (1907–1992) and Joseph Raz (1939–). Interestingly, however, Kelsen’s understanding of the centrality of sanctions and coercion followed, as he recognized, from the writings of John Austin (Kelsen 1941), even as Hart and his successors in the Anglo-American analytic tradition rejected Austin’s view of threats of sanctions as necessary to an account of the operation of law.
For Hans Kelsen, and for an important part of the Continental tradition (e.g., Norberto Bobbio (1904–2004)), law is normative (i.e., basically constituted by duty-imposing norms) and must be understood as such. For Kelsen, the law is a system of norms that regulate coercion. Coercion is the characteristic substantive feature of the legal norm, and of the legal order that is meant to apply the coercive sanctions. That means that the form of every “primary” law is that of a conditional prescription to judges or legal enforcers as to where sanctions ought to be applied if a certain behavior, the “delict,” is carried out. The legal order thus becomes a system for behavioral guidance, not because it tells law’s subjects how to behave, but because it tells officials how they ought to deal with the subjects under certain conditions. The legal order for Kelsen is therefore a normative system, and law is a set of norms with the kind of unity that is typical of a system. This unity of the legal order is based on a basic norm (the Grundnorm): this is a norm, albeit not posited through positive law, which Kelsen regards as the fundamental prerequisite for legal thinking and which explains the “validity” or binding force of law, with the result that the grounding foundation of the validity of a norm is always another norm. No ought can be derived from a fact – from an is. It follows that the legal order is a chain of norms in the form of a pyramid, where the basic norm is a hypothetical and transcendental norm that is the epistemological condition needed for regarding all the norms of a given legal order as objectively valid or endowed with binding force. The specific point of reference of any legal norm is the constitution, which was itself created by an earlier constitution, and it is possible to trace this line back from constitution to constitution through to the very first constitution. According to Kelsen, the authority (validity, or binding force) of the Grundnorm (the “constitution” in a “logical-transcendental” sense) is to be presupposed, and this endows the first historical constitution (the “legal-positive constitution”) with binding force.
For the school of the Reine Rechtslehre (Kelsen, Adolf Merkl (1890–1970), Franz Weyr (1879–1951)), legal science is only legal noetics (jurisprudence deals with the question of knowledge of law), legal logic, and legal methodology. On this view, philosophy of law is a fundamental theory of law: that is a system of basic legal concepts which constitute the prerequisites for a possible science. Jurisprudence as a science of law has the task of determining the concept of law and the “formal” or “structural” connections between norms without consideration as to their specific content and providing a methodological theory for legal science. Jurisprudence may thus be designated as legal science, as a science of the “form” of law. Compared to the form of law, the norm as an idea is the quintessence of legal thinking in general. It is this form which gives legal character and normativity. The character of normativity (Kubeš 1977) may be recognized precisely in the phenomenon of law. However, the origin of normativity cannot be inferred from the real world. It is therefore impossible to infer an ought from an is (Kelsen 1967). Nevertheless, the normativity of the legal sphere is closely related as ideality to the reality of the world. This becomes possible because man is capable of transposing the ought and the content of the norm as an idea of law into reality in the form of an imperative. The legal norm becomes the foundation of normativity, that is, of the obligatory character of law. The transfer of the norm as an idea of law into the world of reality thus occurs, when, contingently, individuals make the norms a part of an actual legal system and of a functioning legal order.
A large number of basic concepts (such as, for example, the concepts of norm, duty, person subject to a duty, and subject of the law, along with the concepts of right and validity) that are constantly used in legal science have been premised on the concept of normativity: that is, of the imperative or prescriptive or obligatory nature of law, as opposed to the simply descriptive. And thus a law is, by definition, normative, and only valid legal norms – those that impose sanctions and are part of a system of organized coercion – are in fact normative (Kelsen 1960). Thus, having a legal right or an obligation means having a strictly legal right or obligation, that is a legal right or obligation tout court (Spaak 2003).
H. L. A. Hart
Kelsen’s basic norm, as a presupposed norm, does not explain the empirical existence of legal systems, and thus does not explain a legal system as an existent set of rules endowed with the force of law or with authority. A significant solution to this problem was proffered by H. L. A. Hart (1961) who makes the existence of a (mature, municipal) legal system depend on a social rule that is actually practiced, and is thus real: the ultimate rule of recognition, a meta-rule in any legal system which contains the criteria of legal validity for all the other rules within the legal system. For Hart, the existence of the ultimate rule of recognition rests on acceptance among officials (it is an important feature that the rule of recognition is an official custom) about who shall have authority to decide concerning legal matters, what judges or other officials will treat as binding reasons for decision, what sources of law will be deemed legitimate, and what rules and sources will govern the actions of officials. The content of the ultimate rule of recognition can be identified from the social practices of officials who acknowledge the rule as a legitimate standard of behavior and satisfy the rule’s requirements. For Hart this ultimate rule of recognition has following functions: (1) to establish a test for the validity of law in the underlying legal system and to all that belongs to the legal system, (2) to give unity to the legal system unifying its laws. A legal rule is thus a valid legal rule insofar as it is produced in a certain way (prescribed, e.g., by a rule of change) as mandated by the rule of recognition. So any rule that complies with the rule of recognition is a valid legal rule. It follows that the rule of recognition and its normative force determines what is to be considered an actual law. The normativity of law, to Hart and others in his tradition, rests on the factual existence of what are ultimately social norms.
Legal Positivism and Legal Science
Classical legal positivism provides an account of the validity of law. For Kelsen, validity is the specific mode of existence of a norm. A valid norm is one that is systematically valid and is part of the legal system. Legal positivism in fact tends to establish the sources of the validity of the legal system. In that sense we can say that jurisprudence, as conceived by positivists, fulfils the need for a general theory of positive law, but is not concerned with handling the problem of justice, whereas “legal philosophy”, as the expression is sometimes employed, is more concerned with the theory of natural law and the law of reason: that is the theory of right or just law (Alexy and Dreier 1990). Yet both jurisprudence in the positivist tradition and legal philosophy in the natural law tradition share some of the same features, such as the conceptual analyses of the most important concepts of law in general and of positive law in particular: that is the concepts of the legal norm, of legal obligation, and of legal validity. Obviously, to study norms and to consider law in terms of norms is to offer a general theory of legal norms and thus of law. To engage in conceptual analysis of the concept of law – Raz, Coleman, Shapiro – is to engage in jurisprudence in the search for a general theory of law, and in that sense philosophy of law is just a synonym for jurisprudence in other traditions.
Jurisprudence as a normative science may thus coincide with legal philosophy if both work as a discipline that operates in a normative way but not if we understand jurisprudence as analytical jurisprudence, which deals mainly with the structural analyses of the law and its concepts. Science in that sense has little in common with natural science or even social science, and as normative science it must be understood as the study of norms and the normative order, and not as an empirical inquiry. Legal science as Wissenschaft should not therefore be understood as (necessarily) a science in the sense in which that word is used by natural and social scientists. The object of normative jurisprudence is norms and not patterns of actual behavior and must not be confused with causal empirical science: the law is not the same as the science of law (Kelsen 1945). However, law as the subject-matter of scientific research can be considered from various standpoints, that is, historical, logical, ethical, sociological, or economic. Nevertheless, the main juristic task, for theorists who are doing “legal science,” is to inform about (or “correctly” establish) what people are legally obliged, enabled, or permitted to do or prohibited from doing (Alexy and Dreier 1990), whereas legal philosophy is often understood to be based on more general philosophical aspects of law, such as ethical questions about rightness and justice. Accordingly the general theory of law, legal methodology, and the theory of legal science all belong to jurisprudence, whereas the history of legal philosophy and legal ethics belong both to philosophy of law (Alexy and Dreier 1990). This means that jurisprudence has both an empirical and a normative dimension, whereas analytical jurisprudence deals with a logical and conceptual analysis of the concepts of law and legal science. Taking account of the normative aspect of law, jurisprudence is concerned with how the law and legal science should be. The normative dimension deals not just with the role of norms and the structure of the legal order but also with statements concerning right or just law and the ethical aspect of law encompassing the problem of justice. The question thus arises as to whether right or just law can be universally valid in all legal systems. If we consider just law to be one that is based on a rational justification, then this assertion makes sense and will create an argument in favor of universal validity. On the other hand, if it is considered in relation to the different legal cultures of the various legal systems, the abstract idea of validity that is common to all legal systems will as applied become relative and be limited to particular legal contexts.
Joseph Raz who in one of his earlier books – The Concept of a Legal System (Raz 1980) – relied heavily on Kelsen, also focuses on normativity and above all on three problems: (1) How are rules normative, and how do they differ from ordinary reasons? (2) Why are normative systems systematic? (3) What distinguishes legal from other systems, and in what does their normativity consist? Raz (1999) answers all three questions by considering reasons for action as the basic normative concept, and providing in his theory of norms a unified account of normativity. Norms are rules, which require that a certain action be performed, as well as rules granting permission. The different types of norm and their logical features make up the normative systems, that is, the systems of norms. For Raz, one of the most important types of normative system is the legal system. For Raz, some kinds of rules, such as categorical and permissive ones, are reasons for action of a special type, and other rules, such as power-conferring rules, are logically related to these reasons. Raz has tried to show how norms and reasons contribute to explaining prescriptions such as commands and orders. Raz asserts that normative theory is mostly concerned with what people ought to do. Individuals should behave on the basis of values derived from a theory of values, and normative theory should define who and which values should be realized. The main concepts are “oughts” and reasons for action (as the most fundamental), rules, duties, rights, and norms with binding force. So for Raz theory is conceptual analysis. Conceptual analysis also covers the logical features of concepts such as value, norm, and the nature of the rules governing practical reasoning, and thus goes beyond the mere analysis of norms and normative systems.
An important contrast to the accounts of both Kelsen and Raz, as well as to those in the natural law tradition, is that which was offered by John Austin (1790–1859). As is well-known, Austin defined a law “properly so called” as that which threatened the imposition of negative sanctions – evils – upon disobedience. A prescription or an imperative that was not accompanied by a sanction was simply not a law at all. As a result, the idea of normativity was inextricably tied to sanctions, and the force of law was a function of law’s sanction imposing capacity. Insofar normativity is the feature that explains how law can provide reasons for actions to its subjects. Austin insisted that the fear of sanctions was a necessary or essential property of law’s normativity. Without a sanction the subject would have no reason to follow the law or to take a law as providing a reason for action at all.
The critique of Austin’s conception of normativity is an important component of the insights of Hart and his followers. Arguing against Austin, Hart argued that it was possible for both officials and subjects to take laws as reasons for action even were there no sanctions attached to those laws. Hart called this “internalization”, and it was central to his arguments against the Austinian picture that internalization was conceptually possible without sanctions. Although there is debate about the extent to which Austin (and Jeremy Bentham before him) actually maintained that a sanction-free legal norm was a logical or conceptual matter, the normativity of law with the sanctions that law contingently imposes is a position rarely held by contemporary legal theorists.
To summarize the concept of “jurisprudence as a normative science,” the term “normative” must not be understood as a description of particular laws or legal systems, but rather in the sense of a field of study and a field of cognition that has norms as its object. In the latter case, legal science can be understood as being “normative” in the sense that norms constitute its object. The task therefore of legal science is not to prescribe norms but to describe them, and, perhaps more importantly, to offer an analysis of just what norms – in general – are, and what follows from the existence of a norm.
A core concept of law as the matter of normative science is the term “ought,” which must be construed in a strictly normative sense. It is through the “ought” that legal science grasps the normative characteristic of its object, not in the sense of laying down an obligation but according to a relationship of imputation, that is, according to the Kelsenian schema, “if A then [it ought to be] B.”
It is worth noting in conclusion that the study of the logical form of legal norms is not a characteristic feature solely of legal science but also of the more empirical sociology of law. While the analysis of the logical form of the norms analyzed by sociology of law and the logical concepts as nexuses for imputation is a common feature to all normative social sciences, the empirical sociology of law, as well as the doctrinal study of law legal seek to determine the specific content of legal rules compared to other social-normative laws. Legal concepts may only be elaborated and the specific content of legal rules may only be determined on the basis of empirical and normative enquiries based on contingent historical-social reality.
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