Though legal positivism remains popular, HLA Hart’s version has fallen somewhat by the wayside. This is because, according to many, the central task of a theory of law is to explain the so-called “normativity of law.” Hart’s theory, it is thought, is not up to the task. Some have suggested modifying the theory accordingly. This paper argues that both Hart’s theory and the normativity of law have been misunderstood. First, a popular modification of Hart’s theory is considered and rejected. It stems from a misunderstanding of Hart and his project. Second, a new understanding of the mysterious but often-mentioned “normativity of law” is presented. Once we have dispelled some misunderstandings of Hart’s view and clarified the sense in which law is supposed to be normative, we see that Hart’s view, unmodified, is well suited to the task of explaining law’s normativity.
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Weightless Normativity: A Theory of Law, Language, and More
Reductive theories of law and language appear to face an insurmountable obstacle: they are normative practices, and normativity cannot be explained in merely descriptive terms. I argue that this obstacle can be overcome. Law, language, and other practices are normative in a neglected sense—they do not necessarily generate reasons, but they consist of rules. Rule-constituted practices can be accounted for in descriptive terms, though with ineliminable mention of evaluative attitudes. I offer accounts of law and language along these lines. [dissertation abstract]