The Normativity of Law

Let us now see how Kelsen thought that the basic norm helps to explain the sense in which law is a normative domain and what this normativity consists in. The first and crucial point to realize is that for Kelsen the idea of normativity is tantamount to a genuine “ought”, as it were; it is a justified demand on practical deliberation. A certain content is regarded as normative by an agent if and only if the agent regards that content as a valid reason for action. As Joseph Raz noticed, Kelsen agrees with the Natural Law tradition in this particular respect; both assume that the normativity of law can only be explained as one would explain the normativity of morality, or religion for that matter, namely, in terms of valid reasons for action (Raz 1979, 134–137; but cf. Paulson 2012). But then, the problem for Kelsen is how to explain the difference between the normativity of law and that of morality; if legal “ought” is a genuine “ought”, what makes a legal obligation distinct from a moral one? Kelsen’s answer is that the relevant “ought” is always relative to a given point of view. Each and every type of “ought”, be it religious, moral or legal, must presuppose a certain point of view, a point of view which is constituted by the basic norm of the relevant normative system.
In other words, Kelsen’s conception of legal normativity turns out to be a form of Natural Law completely relativized to a certain point of view. However, in Kelsen’s theory the relevant point of view is distinctly a legal one, not some general conception of morality or Reason. That these two basic norms, or points of view, can come apart, is nicely demonstrated by Kelsen’s comment that “even an anarchist, if he were a professor of law, could describe positive law as a system of valid norms, without having to approve of this law” (PT2 218n). The anarchist does not endorse the legal point of view as one that reflects her own views about what is right and wrong. Anarchism is understood here precisely as a rejection of the normative validity of law; however, even the anarchist can make an argument about what the law in this or that context requires; and when she makes such an argument, she must presuppose the legal point of view, she must argue as if she endorses the basic norm of the relevant legal system. Joseph Raz has called these kinds of statements “detached normative statements”; the anarchist argues as if she endorses the basic norm, without actually endorsing it. Another example that Raz gave is this: suppose that at Catholic priest is an expert in Jewish Law; the priest can make various interpretative arguments about what Jewish law really requires in this or that context. In such a case, the priest must argue as if he endorses the basic norm of Jewish Law, but of course, being a Catholic, he does not really endorse it, it does not reflect his own views about what is right and wrong (Raz 1979, 153–157).
So here is what emerges so far: the concept of normativity, the sense in which normative content is related to reasons for action, is the same across all normative domains. To regard something as normative is to regard it as justified, as a warranted requirement on practical deliberation. However, the difference resides in the difference in points of view. Each basic norm determines, as it were, a certain point of view. So it turns out that normativity (contra Kant) always consists of conditional imperatives: if, and only if, one endorses a certain normative point of view, determined by its basic norm, then the norms that follow from it are reason giving, so to speak. This enables Kelsen to maintain the same understanding of the nature of normativity as Natural Law’s conception, namely, normativity qua reasons for action, without having to conflate the normativity of morality with that of law. In other words, the difference between legal normativity and, say, moral normativity, is not a difference in normativity (viz, about the nature of normativity, per se), but only in the relevant vantage point that is determined by their different basic norms. What makes legal normativity unique is the uniqueness of its point of view, the legal point of view, as it were.
We can set aside the difficulties that such a view raises with respect to morality. Obviously, many philosophers would reject Kelsen’s view that moral reasons for action only apply to those who choose to endorse morality’s basic norm (whatever it may be). Even if Kelsen is quite wrong about this conditional nature of moral imperatives, he may be right about the law. What remains questionable, however, is whether Kelsen succeeds in providing a non-reductive explanation of legal normativity, given the fact that his account of legal validity turned out to be reductive after all. The trouble here is not simply the relativity to a point of view; the trouble resides in Kelsen’s failure to ground the choice of the relevant point of view in anything like Reason or reasons of any kind. By deliberately avoiding any explanation of what it is that might ground an agent’s choice of endorsing the legal point of view, or any given basic norm, Kelsen left the most pressing questions about the normativity of law unanswered. Instead of providing an explanation of what makes the presupposition of the legal point of view rational, or what makes it rational to regard the requirements of law as binding requirements, Kelsen invites us to stop asking.

The Normativity of Law

The Normativity of Law :: تعاليق

The Normativity of Law