Chapter

Normativity, Legality and Judgment

N.E. Simmonds

in Law as a Moral Idea

Published in print August 2008 | ISBN: 9780199552191
Published online March 2012 | e-ISBN: 9780191701597 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199552191.003.0004
Normativity, Legality and Judgment

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The philosophy of law has tended to concern itself with the structural types of questions, such as whether the normativity of morality can be reduced to the normativity of rational self-interest. Legal positivists, such as John Austin, asserted a clear separation between law and morality, such as by equating the existence of legal duties with the likelihood of the duty-bearer suffering a sanction. However, his critics noted that one might have a legal duty even though one is in fact unlikely to suffer any sanction, and they took the failure of such reductive analyses to indicate a more general failure of legal positivism. Hans Kelsen originally sought to defend legal positivism, but ultimately concluded that positivism could sustain the normative character of law, though only by treating legal discourse as grounded in a basic assumption of law's bindingness, what he called the Grundnorm. HLA Hart rejected Kelsen's theory of the Grundnorm, but agreed that while reductivism was certainly to be rejected for its failure to capture the normative character of law, the rejection of reductivism should not lead to a rejection of legal positivism, since the prescriptive action-guiding character of propositions of law can still be preserved without grounding law in morality. However, the author argues that Hart's theory, though not to be underestimated in power and subtlety, should nevertheless be ultimately rejected for being a mere tautology, since by effectively defining legal validity in terms of derivability from the rule of recognition, it, of course, follows that the concept cannot be applied to the Rule itself.

Keywords: normativity; John Austin; Hans Kelsen; Grundnorm; HLA Hart; legal duty; rule of recognition

Chapter.  15604 words. 

Subjects: Jurisprudence and Philosophy of Law

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