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.
The Normativity of Practice; or Why It's Okay to Slurp Your Soup
There are two distinct senses in which a practice can be normative. Practices that are normative in one sense can be reduced to descriptive states of affairs. In this paper, I develop these claims as they apply to the practice of table manners. I argue that reductive theories of table manners are possible, and then I present and defend such a theory.
How to Make a Rule: A Defense of a Supposedly Refuted Theory
H.L.A. Hart’s theory of law rests on a widely rejected theory of rules. This “practice theory of rules,” as it has come to be called, offers sufficient conditions for the existence of social rules. But the practice theory is thought to face two problems: (1) it fails to account for the normativity of law, and (2) it is susceptible to a decisive counterexample dating back to Warnock (1971). In this paper, I offer solutions to both problems. In response to (2), I argue that the counterexample is no counterexample at all. We see this by revisiting an old, but underappreciated distinction made by Rawls (1955). In response to (2), I argue that though mention of the normativity of law is ubiquitous, it is widely misunderstood. Once we are clear on the sense in which law is normative, we can see that Hart’s practice theory has no problem accounting for it.
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]