Elusive Normativity: A Review Article on Bertea’s the Normative Claim of Law

Abstract

'Elusive Normativity’ deals with the nature of normativity in general and the normativity and the nature of law in particular.

The first part of the paper contains a review of Stefano Bertea’s book The Normative Claim of Law. In this book Bertea aims to do two things. First he defends the view that the law makes a normative claim on us. And second he aims to found this normative claim. The main conclusion about this book is that Bertea either made it too hard on himself by arguing what would be obvious given one interpretation of his starting point, or made it too easy by devoting little attention to arguing one of his assumptions given another interpretation of his starting point.

One of the main assumptions of Bertea’s book is that the normativity which the law according to Bertea claims to have cannot be reduced to matters of fact, such as the psychology of the law users. The second part of this paper is mainly devoted to a scrutiny of this assumption. Whether, and in what manner, such a ‘reduction’ is possible are the questions which guide this second part. The conclusion is that such a reduction is possible if one takes a constructivist approach to normative justification.

Keywords: normativity, nature of law, reasons for action, ought and is, justification