Unpacking Normativity: Conceptual, Normative, and Descriptive Issues

Description

This book provides a new and wide-ranging study of law’s normativity, examining conceptual, descriptive and empirical dimensions of this perennial philosophical issue. It also contains essays concerned with, among other issues, the relationship between semantic and legal normativity; methodological concerns pertaining to understanding normativity; normativity and legal interpretation; and normativity as it pertains to transnational law. The contributors come not only from the usual Anglo−American and Western European community of legal theorists, but also from Latin American and Eastern European communities, representing a diversity of perspectives and points of view – including essays from both analytic and continental methodologies. With this range of topics, the book will appeal to scholars in transnational law, legal sociology, normative legal philosophy concerned with problems of state legitimacy and practical rationality, as well as those working in general jurisprudence. It comprises a highly important contribution to the study of law’s normativity. Table of Contents List of Contributors Table of Cases Table of Legislation Introduction PART I METHODOLOGICAL APPROACHES TO UNDERSTANDING NORMATIVITY 1. Is Moralised Jurisprudence Redundant? I. Introduction II. Indirect Evaluation and Theories of Law III. A Wrong Turn IV. Law and Participants’ Self-Understanding V. Conclusion 2. The Metric Approach to Legal Normativity I. Introduction II. The Three Functions of the Nexus III. Legal Reasons as Nexus Reasons IV. Loosing the Nexus PART II ON THE NATURE OF LEGAL NORMATIVITY/LEGAL OBLIGATION 3. The Nature of Legal Obligation I. Introduction II. The Nature of Legal Obligation – Question 1: Normativity as a Matter of Choice? III. The Nature of Legal Obligation: Question 2: Sui Generis? IV. Conclusion 4. The Problems of Legal Normativity and Legal Obligation I. Introduction II. The Problem of Legal Normativity III. The Problem of Legal Obligation and Its Logical Relation to the Problem of Legal Normativity IV. The Distinction between Subjective and Objective Reasons V. A Non-Orthodox Account of the Nature of Legal Obligation VI. Explaining Law’s Normativity in Terms of Basic Reasons: Moral and Prudential Reasons for Action VII. Summary and Conclusions 5. Non-naturalism, Normativity and the Meaning of Ought : Some Lessons from Kelsen I. Introduction II. Purity III. Non-Naturalism IV. Imputation V. Psychologism VI. Fragmentation VII. Conclusion and Summary PART III NORMS AS REASONS FOR ACTION 6. Norms, Reasons, and the Law I. Introduction II. Codifying Norms III. Reason-instantiating Norms IV. Constitutive Norms V. Authoritative Norms VI. Is Law’s Normativity Unique? 7. Normative Reasoning From a Point of View I. Introduction II. Reasoning From a Point of View III. Objection 1: Application versus Interpretation IV. Objection 2: The Circumstances of Judging V. Conclusion 8. Legal Reasons and Upgrading Reasons I. Introduction II. The Codification Account III. The Triggering Account IV. The Multi-tiered Account PART IV NORMATIVITY AND LEGAL REASONING 9. Normativity of Basic Rules of Legal Interpretation I. Introduction II. Following Basic Rules of Legal Interpretation III. Fundamental and Derivative Normativity of Interpretation IV. Conclusion 10. Another Way to Meet Hart’s Challenge I. Introduction II. The Argument from Fallibility III. A Paradox of Hart's Fallible Finality IV. An Alternative Account of the Normativity of Legal Discourse 11. The Constraining Force of Analogies and the Role of the Judge I. Introduction II. The Worry Explained III. Judges as Interlocutors IV. A Friend to the Arguer, A Foe to the Interlocutor PART V LEGAL NORMATIVITY BEYOND THE STATE 12. What Makes a Transnational Rule of Law? Understanding the Logos and Values of Human Action in Transnational Law I. Introduction II. Understanding Human Action: The Medusa of Coercion III. The Rule of Law and the Thick Conception of the Transnational Rule of Law IV. Possible Objections V. Conclusion 13. Theorising ‘Unidentified Normative Objects’ of Global Regulatory Regimes I. Introduction II. Unpacking Normativity III. On the Normativity of UNOs IV. Conclusion Index