Vienna Lectures on Legal Philosophy, Volume 2: Normativism and Anti-Normativism in Law

Description

What is law? Is it a set of obligations imposed on courts and officials to guide their conduct and to assess the conduct of others; or is it the result of various, ever negotiable, settlements reached by contending forces that accept, for the time being, arrangements and understandings in order to sustain conditions of peaceful cooperation? If law is the former, its import and meaning are independent of a shifting constellation of forces; if the latter, then what the law says depends on the relative power and prestige of the actors involved. If scholars and practitioners believe that law imposes such obligations that demand allegiance, they are considered normativists. Alternatively, if they view legal constraints as transient arrangements between and among contending groups, they are not. Hardly any issue in contemporary legal philosophy is as controversial as the normativism/anti-normativism debate; while some believe law’s (claim to) ‘normativity’ to be at the very core of the concept of law, others brush it aside as a pseudo-problem, frequently discussed (and oftentimes resolved) in the history of legal thought. The second volume of the Vienna Lectures on Legal Philosophy presents the positions of some of the leading scholars working on the problem and allows them to take a stand on the issue. In providing a forum of discussion for proponents and opponents alike, it allows for a nuanced assessment of a debate that all too often is led by one side without paying attention to the arguments of the other. Preface Table of Contents List of Contributors 1. The Normality of Normativity I. Introduction II. Normative and cognitive expectations III. Bridging the divide IV. Intertwinements between normality and normativity V. The temporal structure of normativity VI. Conclusion 2. On the Significance of Virtues in Morality and Law I. Law, Morality and their Functional Interrelations II. Virtues and their Role in Morality III. Moral Virtues in Support of Legal Order IV. Legal Practice and its Related Virtues 3. The Basic Norm I. Introduction II. Legal Theory sans the Basic Norm: Kelsen's Main Problems (1911) III. The Prehistory of the Basic Norm, 1914 IV. The Prehistory of the Basic Norm, 1915 V. Basic Norm Developments in Kelsen's Texts: 1920 up to 1960 VI. The Forms of the Basic Norm: A Systematic Approach VII. The Grounding Function: Does Kelsen Adduce a Neo-Kantian Argument? VIII. The Neo-Kantian Argument: Form and Assessment IX. The Explicative Function: an Outlier? X. Conclusion 4. Normativity at Large: On Moral Absolutism, Legal Relativism and
Social Systems Anti-Normativism I. Morality at large: modern society between the icy self-constitution and the hot self-destruction II. The law's self-validation: a comment on normativism III. Democracy and relativism IV. Syncretism of post-positivist legal theory V. A factory of morality, or digital irony for the cosmopolitan age? VI. From pure law and sovereign virtues to the dirty life-world: on the crisis of the scientific reason VII. Normativity and meaning: a systems theoretical view VIII. Systemic meaning of legal normativity: a critique of ontology and deontology IX. Legality of values and legality as a value: concluding remarks on the circularity of moral universalism and legal particularism 5. Legal Realism and Legal Reasoning: A Quasi-Realist Approach I. Introduction II. Legal Statements III. Karl Olivecrona's Anti-Normativism IV. Expressivism V. Expressivism: Some Difficulties VI. Quasi-Realism: the Aim VII. Modest Quasi-Realism VIII. Ambitious Quasi-Realism IX. Modest QR: The Purpose of Evaluation X. Modest QR: Clashing Attitudes XI. Modest QR: Quasi-Realism and Moral Fictionalism? XII. Ambitious QR: A Best Possible Set of Attitudes XIII. Ambitious QR: Fundamental Moral Error XIV. Ambitious QR: Doomed If you Do and doomed If You Don't? XV. Conclusion 6. On the Boundaries of Normativity in Law I. Normativism and Public Justification II. Common Law Justifications III. The scope of Normativity, sources of normativity 7. Can We Escape Normativism in Law? I. Introduction II. Concept III. Expression IV. Objectivity V. Contrast VI. Democracy and Rule of Law VII. Principles VIII. Conclusion 8. Real Constitutional Law: A Revised Madisonian Perspective I. The received contrast II. Using constitutional law III. Prudent conventions IV. Enter Madison V. Matching de facto and de jure VI. Reason over passion VII. Demigods VIII. A tacit intrasystemic preference IX. The external is the internal X. Ex facto ius oritur XI. Two genuine normative constraints XII. Strategic legalism and objectivity in interpretation XIII. The constitution determines its own interpretation XIV. The question of reason XV. Ancient and modern constitutionalism XVI. The inconsistency XVII. A Machiavellian revival XVIII. Conclusion 9. The Concept of Law Revisited: An Essay in Descriptive Psychology I. Introduction II. Legal Theory and Social Science III. Behavioural Foundations of Legal Theory IV. Legal Theories and Their Implicit Behavioural Assumptions V. Outlook 10. The Foundations of Legal Empirical Studies of European Union Law:
A Starter Kit I. Introduction: The methodology of European Union law and the Legal empirical tide II. The methodological problem of European Union law that probably needs fixing III. The conditions of the empirical solution to the European methodological problem IV. The debate reimagined V. Conclusion 11. Preserving us from Regulatory Power? Legal Normativity and the
Possibility of Agency I. Introduction II. Upstream versus Downstream perspectives on 'normativity' III. How law as a normative practice presupposes a minimal degree of agency IV. Why an agent-centered narrative need not collapse into some crude voluntarism V. The unacknowledged role of non-deliberative agency in the processes giving rise to norms VI. Conclusion Index