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«Of course there are those for whom the mere sight of the title would require more commitment than they’re willing to give. ‘Normativity’ is an ...»

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You’d better be committed:

legal norms and normativity

(unfinished, draft version)

SYLVIE DELACROIX

Of course there are those for whom the mere sight of the title would

require more commitment than they’re willing to give. ‘Normativity’ is an

ugly word. It’s also come to be associated with a frustratingly nebulous concept. Some would rather make do without it, though none of the alternative words they suggest (‘obligation’ or ‘obligatory’ is the most frequent suggestion) quite fits the bill.

As a concept that is central to our understanding of law, ‘normativity’ has come to acquire an important place in mainstream jurisprudence following Hart’s and Kelsen’s common ‘conviction that a central task of legal philosophy is to explain the normative force of propositions of law’.1 This reI share with him [Kelsen] the conviction that a central task of legal philosophy is to explain the normative force of propositions of law [... ] None the less [... ] my main effort in these two essays is to show that references to both psychological and social facts, which Kelsen’s theory in its excessive purity would exclude, are in fact quite indispensable’ (Hart markable communality of purpose2 however concealed an equally remarkable disparity in both its scope3 and its meaning. In a minimalist understanding, the normativity of law is trivial. If we take the sphere of normativity to include all objects or propositions (whether grammatically formulated in terms of ‘ought’ or not) that are somehow capable of being used for guidance, one may wonder why Hart and Kelsen even bothered to assert such a platitude.4 To get a sense of what is at stake when upholding the normative dimension of law, one may start from what both Hart and Kelsen took to be implied by its negation: if law wasn’t normative, all we could speak of would be mere habits (Hart) or raw power relations (Kelsen).

Unlike the idiosyncratic table manners of my hosts, unlike the injunction to hand over my cash at gunpoint5, law’s demands have a claim on my conduct. This need not mean that I endorse them. I may hold some, or all of 1983, p. 18).

Indicating a common front against ‘reductionist’ accounts of law, i.e. those accounts which either condemn the very notion of a binding legal norm as confused or fictitious, or reduce the law to a set of predictive statements as to the behaviour of courts or officials (see Hart 1994, pp. 11-12).

While for Kelsen the task of explaining the normative dimension necessarily entailed a foundational search for the ground of legal normativity, Hart stayed well away from any such foundational endeavour thanks to the deflationary effects of J.L. Austin’s method, aimed at elucidating even the most complex concepts by reference to the ‘things people do with words’.

In this minimalist understanding, law is just as normative as, say, culinary recipes, and there’s nothing more to it.

Along with a myriad other such request etc., they all make a claim on my conduct / judgment.

them, to be repugnant. It need not mean, in fact, that I have formed any judgment whatsoever about their moral worthiness. I may be referring to them in a ‘detached’ way.6. It certainly does not mean that I will actually comply with them. So what does it mean, then, to state that the law is normative? Hart had a relatively easy answer to this question: it simply means that law is a social practice towards which some people at least hold a ‘critically reflexive attitude’ (they will criticize any deviation from its standards, and use those to justify their own actions).7 While Hart’s account left his critics craving for more8, Kelsen’s, for its part, left them puzzled.

His acrobatic attempts to secure the purity of his theory (grounding law’s normativity in a presupposed Basic Norm free of any factual or moral adulteration) nevertheless had the merit of highlighting, negatively, the challenge at stake. One cannot get anywhere, in one’s understanding of legal normativity, without addressing its link with other normative domains (including, most importantly, that of morality9 ).

This may sound like too much to ask of legal theorists. Given the pervaI will not reproduce Raz’s analysis here (see...).

Hart’s Rule of Recognition merely plays a ‘secondary role’ in relation to Hart’s explanation of normativity, being the object of the phenomenon of acceptance which alone grounds the normative dimension of law.

As a ‘downstream’ account of law’s normativity, Hart seeks to capture the normative status of law by describing how certain people treat it as normative, but never ventures into an explanation of what makes this normative dimension possible in the first place (see Delacroix 2006, pp. 63 ff.).

Given their skeptical misgivings about the possible objectivity of moral norms, neither Hart nor Kelsen were at all likely to take up that challenge.

sive and enduring difficulties underlying any account of morality’s normative status, one may adduce fears for jurisprudence’s analytical clarity in order to preserve it from the inevitable pit of meta-ethical questions that would flow from placing such a daunting task at the centre of the jurisprudential agenda. In this context, Gardner’s recent paper —‘Nearly Natural Law’10 — cannot but be good news. Here is a flag-bearer of analytical clarity who starts his paper, head on, with an exploration of morality’s specific normativity. Yet there’s a catch. Gardner won’t delve into what enables morality’s ‘inescapable’ hold over us (‘Korsgaard’s problem’). Having established that morality inescapably binds us, he swiftly moves on to the puzzle (‘Hart’s problem’) that interests him: ‘how is it possible that the law is made up of norms [...] even though it is not the case that engagement with legal norms is rationally inescapable’ ?11 This problem, Gardner claims, is not only distinct from Korsgaard’s: it rivals it. ‘One must treat one of the two problems of normativity as solved or dissolved in order to see the other as a problem’.12 Now I do not think that Hart deemed ‘Korsgaard’s problem’ to be solved or dissolved.13 Considered in itself, this is an intriguing claim. In an attempt Gardner 2007 Gardner 2007, p. 8.





Gardner 2007, p. 13.

Far from that. I would argue that Hart’s own silent struggle with ‘Korsgaard’s problem’ (see Hart 1986 — for a detailed analysis of the dualist outlook informing Hart’s misgivings, see ‘Ethical objectivity without the trappings. A pragmatist answer to Hart’s agnosticism’,in progress) very much informed the limits he imposed upon his account of legal normativity. Reciprocally, Korsgaard certainly cannot be said to deem ‘Hart’s problem’ to be solved or dissolved. I do not think she has ever considered it.

to understand it, this paper sets out to highlight what I take to be one of the most interesting issues associated with any account of normativity (whether moral or otherwise): the difficulty that consists in understanding the relationship between our contingent choices and the norms they may give rise to. I unpack this challenge in section 2, while section 1 aims at proposing a definition of norm that places the notion of commitment at its core.

1 What is a norm?

Gardner’s argument depends in part on the contrast he draws between two different understandings of the notion of norm. According to Gardner, ‘Hart’s problem of normativity becomes a problem only when one tends to think of a norm as a kind of reason, and hence as inescapably engaging the attention of any rational being without further ado. Korsgaard’s problem of normativity, by contrast, becomes a problem only when one thinks of a norm, not as a reason in itself, but as something which rational beings might or might not have a reason to use.’14 Now, let’s start with the second definition, according to which a norm is something which rational beings might or might not have a reason to use.

Clearly it needs some refining as, say, as spoon wouldn’t count as a norm, even if rational beings might or might not have a reason to use it. One could try to refine this definition by saying that a norm is an ought statement which rational beings might or might not have a reason to use. But this definition Gardner 2007, p. 13.

doesn’t quite work either, as an advert enjoining me to wear a pink hat would then have to be deemed a norm, and that’s certainly not always the case.

Of course I can become committed to wearing a pink hat, and hence make it a norm for myself. But then the advert only counts as a norm because I have made it count as a norm. Now it may be tempting, on this basis, to conclude that all norms necessarily owe their normative status to the kind of subjective response involved in making someone’s say-so a norm for oneself.

Such a move would be exposed to a variety of objections. One such objection —in my sense, the decisive one— points at the aporetic character of any conception of normativity that would conceive of norms and values in general as emerging “ex-nihilo”, out of the fiat of human will. When Sartre “remind[s] man that there is no legislator but himself; that he himself, thus abandoned, must decide for himself”15, he contributes to caricaturing existentialism into an empty, non-viable form of voluntarism Yet one may wonder if even Sartre himself felt comfortable with the implications of this extreme voluntarism: if it really meant the possibility of doing whatever one pleases, if it meant choosing among various options from a situation of so called ‘normative vacuum’, where one is bound by nothing but one’s own impulses, then it is hard to understand what exactly triggers the overwhelming feeling of anxiety, the Nausea which Sartre associates with the discovery of one’s freedom. If, on the other hand, the freedom to be discovered is one where the dismissal of the classic meta-referents such as God or Nature actually confronts the individual with the silent demands of the society (past, present Sartre 1973, pp. 55-56 (emphasis mine).

and future) she inhabits, then the challenge that is at hand becomes apparent.

Now, the concern to avoid the pitfalls of the existentialist position does not warrant ruling out any reference to subjective responses in one’s account of norms and normativity. Assuming that one entails the other would conform to a widely held meta-ethical picture, according to which there are but two options when it comes to accounting for the truth-aptitude of moral judgments: either the truth of our moral judgments is entirely dependent on our mental activities, or objective moral knowledge amounts to accurately tracking mind-independent moral facts. This dualist meta-ethical picture is itself dependent upon a Cartesian ‘absolute conception of reality’, which seeks to delineate an ontological dimension existing independently of the human mind: any element that is not part of that ‘independent reality’ is but a subjective projection. Hence, values must either be characterised as embodying, in some way or another, that independent reality or they cannot but be subjective projections / human creations. As the latter characterisation is typically associated with non-viable forms of voluntarism, one would have to succeed in characterising values (and norms, generally) in a way that does not depend at any point on subjective responses if one is to adhere to such a Cartesian conception and avoid the pitfalls exposed above.

This may seem way removed from the contrast drawn by Gardner between two different conceptions of norms, one according to which a norm is ‘something which rational beings might or might not have a reason to use’ while according to the other ‘a norm is a kind of reason inescapably engaging the attention of any rational being without further ado’.16 After all, neither of them seems explicitly wedded to either an existentialist or a ‘Platonic realist’ understanding of norms and values. Yet it is the peculiar understanding of one element —the notion of commitment— which calls for the ‘meta-ethical scene-setting’ I have just ventured.

As discussed in relation to the definition associated with Korsgaard’s problem, a definition of norm that does not make any reference to the notion of commitment is just too minimalist. It doesn’t allow us to discriminate between ‘mere’ ought statements (we are all confronted, on a daily basis, with a myriad of injunctions, purported standards etc.) and norms. All these ‘oughts’17 may have the potential to be norms, but what we’ll want to know is what actualizes this potential; and here, I venture, the notion of commitment is key.

Gardner 2007, p. 13.

Here I find it helpful to quote John Broome who, unlike Jonathan Dancy, ‘does not treat “ought” as a heavyweight word’. ‘I recently advised a guest that he ought to try a mangosteen, on the grounds that mangosteens taste delicious [...] I did not think my guest was obliged to try a mangosteen; “obliged” is more heavyweight. I did think he ought to try one, but I simultaneously thought it would be permissible for him not to’ (Broome 2004, pp. 39-40). While this quote tackles the issue from the opposite perspective —in this case, that of the host stating that his guest ‘ought to try a mangosteen’ (the host is not reminding his guest of a norm requiring his guests to eat mangosteens —this may be the case if the host had said instead ‘you ought to look after your elderly parents’; in that case the host would be expecting his guest to acknowledge that moral norm), one may reversely say that unless the guest commits himself to eating mangosteens whenever offered some, that ought statement is not a norm.

Now this notion does feature in the background Gardner’s own favoured definition of norm18 : ‘a norm is a kind of reason inescapably engaging the attention of any rational being without further ado’.19 This general definition is mapped onto morality’s very specific normativity: its normative status is not the result of our somehow endorsing it, or getting committed to it. For we are all, just in virtue of being human, committed to morality.20 The commitment that underlies morality’s normative status is non-optional.



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