Review of Stefano Bertea and George Pavlakos, Eds., New Essays on the Normativity of Law (Hart Publishing, 2011)

Abstract

New Essays on the Normativity of Law is a collection of essays aiming to introduce new writings that belong to one of three types of approach to the problem of legal normativity, namely (i) the theory of planning agency, (ii) legal conventionalism, and (iii) constitutivism, and to stimulate the readers to engage with and learn from writings in a different tradition of thinking than their own (1).

The book is divided into three parts. Each part deals with one of the three types of approach to the problem of legal normativity and features one lead essay in which the author provides a positive account of the normativity of law, and two or three shorter essays in which the positive account is critically discussed. The lead essays are Scott Shapiro’s “Planning Agency and the Law” (Part I), Andrei Marmor’s “The Conventional Foundations of Law” (Part II) and Stefano Bertea’s “Law and Obligation: Outlines of a Kantian Argument” (Part III).

I focus in this review on the lead essays in Parts 1 and 2, in which the authors attempt to account for the normativity of law within the framework of legal positivism. I begin with a few words about degrees of normativity (Section 2) and about Hans Kelsen’s proposed solution to the problem of legal normativity (Section 3). Having done that, I turn to consider Shapiro’s and Marmor’s essays (Sections 4-5). The review concludes with some thoughts on the significance of the idea of conditional normativity – which appears indirectly in Shapiro’s essay and explicitly in Marmor’s – and on the relation of the problem of the normativity of law to the old problem of the conceptual connection between law and morality (Section 6).

Keywords: Normativity of Law, Legal Positivism, Kelsen, Shapiro, Marmor