Legal Positivism, Law's Normativity, and the Normative Force of Legal Justification

Abstract

In this article, I distinguish between a moral and a strictly legal conception of legal normativity, and argue that legal positivists can account for law's normativity in the strictly legal but not in the moral sense, while pointing out that normativity in the former sense is of little interest, at least to lawyers. I add, however, that while the moral conception of law's normativity is to be preferred to the strictly legal conception from the rather narrow view-point of the study of law's normativity, it is less attractive than the latter from the broader view-point of the study of the nature of law. I then distinguish between a moral and a strictly legal conception of the normative force of legal justification, and argue that legal positivists may without contradiction embrace the moral conception, and that therefore the analysis of the normative force of legal justification need not be a problem for legal positivists. I conclude that, on the whole, we have reason to prefer legal positivism to natural law theory.

I begin by introducing the subject of jurisprudence (Section 2). I then introduce the natural law/legal positivism debate, suggesting that we ought to understand it as a debate about the proper way to explicate the concept of law (Section 3). I proceed to argue that legal decision-making is a matter of applying legal norms to facts, and that syllogistic reasoning plays a prominent role in legal decision-making thus conceived (Section 4). Having done that, I discuss law's normativity (Section 5), the normative force of legal justification (Section 6), and the relation between the former and the latter (Section 7). I conclude with a critical comment on Joseph Raz' understanding of the question of law's normativity (Appendix).

Keywords: Legal positivism, natural law theory, normativity of law, legal justification