A problem for the unambitious view of legal normativity

Stefano Bertea

doi:10.4000/revus.4542

Abstract

In this contribution, I discuss the so-called “unambitious view of legal normativity”, as it is specifically theorised by Brian Bix. While I agree with Bix that legal normativity should not be assumed to be reducible by default to moral normativity, I will argue that the normativity of law cannot be qualified as a sui generis form of normativity, for, pace Bix, the quality of legal normativity is best understood as genuine. That is, the normative claims the law makes on its subjects do address the general practical question: What ought we to do?

Highlights

Today legal theorists of different orientations and with diverse backgrounds agree that the task of elucidating the normativity of the law in general and the nature of such normativity in particular are key components of any ambitious research programme in jurisprudence.2 Brian Bix figures among them, since in his work he repeatedly engages with (multiple components of) the normativity of the law, by theorising a position that is both original and intriguing.3 Here I intend to discuss a study, appeared in a previous issue of this journal, where Bix’s own account of legal normativity is made to emerge progressively through the critical treatment of the conceptions put forward by Hans Kelsen and Herbert Hart.4 In such study, Bix (2018, 10) commits himself to (what he qualifies as) an “unambitious view of legal normativity”, which is programmatically purported to secure an explanation of the normative components of the law that is coherent with the stance of legal positivism
Bix (2018, 10) commits himself to an “unambitious view of legal normativity”, which is programmatically purported to secure an explanation of the normative components of the law that is coherent with the stance of legal positivism
Insofar as Bix’s unambitious view of legal normativity can be shown to be tenable, we would be able to count on a framework that contributes, on the one hand, to advance our understanding of a fundamental dimension of the law—its normativity—and, on the other hand, to rescue a traditional school of law—legal positivism— from a potentially unsettling criticism non-positivists recurrently make—the objection that legal positivism is conceptually unable to account for the normative dimension of the law

Summary

Introduction

Today legal theorists of different orientations and with diverse backgrounds agree that the task of elucidating the normativity of the law in general and the nature of such normativity in particular are key components of any ambitious research programme in jurisprudence.2 Brian Bix figures among them, since in his work he repeatedly engages with (multiple components of) the normativity of the law, by theorising a position that is both original and intriguing.3 Here I intend to discuss a study, appeared in a previous issue of this journal, where Bix’s own account of legal normativity is made to emerge progressively through the critical treatment of the conceptions put forward by Hans Kelsen and Herbert Hart.4 In such study, Bix (2018, 10) commits himself to (what he qualifies as) an “unambitious view of legal normativity”, which is programmatically purported to secure an explanation of the normative components of the law that is coherent with the stance of legal positivism. For there is a crucial, conceptual difference that sets the law apart from the practices that can be regarded as paradigmatically making domain-specific claims, such as the ones Bix refers to—etiquette, fashion and (chess-like) games.

Results

Conclusion