Rules and normativity in law

Brian H. Bix

pp. 125-146

in: Michał Araszkiewicz, Paweł Banaś, Tomasz Gizbert-Studnicki, Krzysztof Płeszka (eds), Problems of normativity, rules and rule-following, Berlin, Springer, 2015

Abstract

Two of the persistent questions in the philosophy of law concern the relationship between law and rules and the relationship between law and morality. Both topics are most sharply raised through the topic of "legal normativity." Many contemporary legal theorists purport to "explain legal normativity," but often fail to articulate what it means to say that law is normative or in what way that property requires explanation. As a way of resolving some problems of legal normativity, this article offers a reading of Hans Kelsen's legal theory as a limited claim about the logic of normative claims: that when one reads the actions of legal officials normatively, this assumes or presupposes the validity of the foundational norm of that legal system, a Kelsenian "Basic Norm." This article also looks at a different aspect of legal normativity through a focus on the work of H. L. A. Hart. Legal norms frequently prescribe what one ought to do or ought not to do. However, the rush of legal theorists to describe law as thus making moral claims seems ungrounded and unnecessary.

Cited authors

Kelsen Hans