New Essays on the Normativity of Law

336 Pages·2011·1.407 MB·English

by  Stefano Bertea, George Pavlakos

New essays oN the Normativity of Law
an important part of the legal domain has to do with rule-governed conduct, and
is expressed by the use of notions such as norm, obligation, duty and right. these
require us to acknowledge the normative dimension of law. Normativity is,
accordingly, to be regarded as a central feature of law lying at the heart of any
comprehensive legal-theoretical project. the essays collected in this book are
meant to further our understanding of the normativity of law. more specifically,
the book stages a thorough discussion of legal normativity as approached from
three strands of legal thought that are particularly influential and which play a key
role in shaping debates on the normative dimension of law: the theory of planning
agency, legal conventionalism and the constitutivist approach. while the essays
presented here do not aspire to give an exhaustive picture of these debates – an
aspiration that would be, by its very nature, unrealistic – they do provide the
reader with some authoritative statements of some widely discussed families of
views of legal normativity. in pursuing this objective, these essays also encourage
a dialogue between different traditions of study of legal normativity, stimulating
those who would not otherwise look outside their tradition of thought to engage
with new ideas and, ultimately, to arrive at a more comprehensive account of the
normativity of law.
Volume 3 in the series Law and Practical Reason
Law and Practical Reason
the intention of this series is that it should encompass monographs and collec-
tions of essays that address the fundamental issues in legal philosophy. the foci
are conceptual and normative in character, not empirical. studies addressing the
idea of law as a species of practical reason are especially welcome. recognising
that there is no occasion sharply to distinguish analytic and systematic work in the
field from historico-critical research, the editors also welcome studies in the
history of legal philosophy. Contributions to the series, inevitably crossing dis-
ciplinary lines, will be of interest to students and professionals in moral, political,
and legal philosophy.
General editor
Prof George Pavlakos (antwerp and Glasgow)
advisory Board
Prof robert alexy (Kiel)
Prof samantha Besson (fribourg, Ch)
Prof emilios Christodoulidis (Glasgow)
Prof sean Coyle (Birmingham)
Prof mattias Kumm (New york and Berlin)
Prof stanley Paulson (st Louis and Kiel)
Prof Joseph raz (Columbia Law school)
Prof arthur ripstein (toronto)
Prof scott shapiro (yale Law school)
Prof victor tadros (warwick)
editorial assistant
triantafyllos Gouvas (antwerp)
Volume 1: the Normative Claim of Law
Stefano Bertea
Volume 2: Community and Collective rights: a theoretical framework for
rights held by Groups
Dwight Newman
Volume 3: New essays on the Normativity of Law
Edited by Stefano Bertea and George Pavlakos
New essays on the
Normativity of Law
edited by
stefano Bertea
and
George Pavlakos
oXforD aND PortLaND, oreGoN
2011
Published in the United Kingdom by hart Publishing Ltd
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© the editors and contributors 2011
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Patents act 1988, to be identified as the authors of this work.
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British Library Cataloguing in Publication Data
Data available
isBN: 978-1-84946-238-9
typeset by hope services Ltd, abingdon
Printed and bound in Great Britain by
tJ international Ltd, Padstow, Cornwall
Contents
List of contributors vii
introduction 1
Stefano Bertea and George Pavlakos
Part i Law, Normativity aND PLaNs 15
1 Planning agency and the Law 17
Scott Shapiro
2 reflections on Law, Normativity and Plans 73
Michael E Bratman
3 the moral Puzzle of Legal authority 86
Veronica Rodriguez-Blanco
4 Legal Normativity and the instrumental Principle 107
Katrien Schaubroeck
Part ii: Law, Normativity aND CoNveNtioNs 141
5 the Conventional foundations of Law 143
Andrei Marmor
6 multilayered Legal Conventionalism and the Normativity of Law 158
Marco Goldoni
7 the Normativity of the Practice of officials 177
Dimitrios Kyritsis
Part iii Law, Normativity aND aUtoNomy 197
8 Law and obligation: outlines of a Kantian argument 199
Stefano Bertea
9 Normativity, metaphysics and Decision 219
Robert Alexy
10 Law, Normativity and Legitimacy: Can moral Constructivism be
fruitful for Legal theory? 229
Cristina Lafont
11 Law, Normativity and the model of Norms 246
George Pavlakos
vi Contents
12 on Constitutive Normativity 281
Corrado Roversi
13 tracing a Genealogy of Legal Normativity: responsibility, authorship
and Contingency 310
Sylvie Delacroix
Index 321
Contributors
Robert Alexy is Professor of Public Law and Legal Philosophy at the Christian
albrecht University, Kiel, Germany. from 1994–1998 he was President of the
German section of the international association for Philosophy of Law and
social Philosophy. he is known and admired worldwide as a leading legal phil-
osopher.
Stefano Bertea is a reader in Law at the school of Law of the University of
Leicester. he has published widely in the fields of legal philosophy, jurisprudence,
political theory and the theory of legal reasoning.
Michael E Bratman is Durfee Professor in the school of humanities
and sciences and Professor of Philosophy at the stanford University. he is an
internationally-respected philosopher of action. his work is credited with further-
ing our understanding of moral responsibility, temptation and self-control, shared
intention and shared cooperative activity. his research interests also include the
nature of agency, practical reason and free will.
Sylvie Delacroix is a Lecturer in Law at UCL and Director of the Law and
ethics Centre. in the past she was a lecturer at Kent University, having previously
held a one-year post-doctoral fellowship at trinity College, Cambridge (senior
rouse Ball, 2002–2003). she holds a PhD from Cambridge University, Licenses
in Law from the University of Louvain-la-Neuve (Belgium), and Candidatures in
Philosophy from the facultés Universitaires saint Louis (Belgium). from 2004–
2005 she was the evelyn Green Davis fellow at the radcliffe institute for
advanced study (harvard University).
Marco Goldoni is a fellow at the Centre for Law and Cosmopolitan values at
the University of antwerp. he has a degree in law and a degree in philosophy
from the University of Bologna. his present research is on european constitution-
alism and in particular on the role of national parliaments seen through a repub-
lican perspective. the thesis aims to build a republican model for the principle of
political accountability. this model will serve as a compass for proposing specific
institutional arrangements.
Dimitrios Kyritsis is a Lecturer in Law at the sheffield Law school. he under-
takes research in jurisprudence, constitutional theory and political philosophy. he
is also a member of the sheffield institute of Biotechnological Law and ethics
research Cluster.
viii Contributors
Cristina Lafont is Professor at the Philosophy Department of Northwestern
University. she holds a PhD and a habilitation from the University of frankfurt.
she specialises in German philosophy, particularly hermeneutics and critical the-
ory. she has also published in philosophy of language and contemporary moral
and political philosophy. she is author of The Linguistic Turn in Hermeneutic Philosophy
(Cambridge, ma, mit Press, 1999) and Heidegger, Language, and World-disclosure
(Cambridge, Cambridge University Press, 2000).
Andrei Marmor earned his Ba and ma in philosophy, as well as his LLB, from
tel aviv University and earned his DPhil from oxford University. he was a pro-
fessor at tel aviv University, israel, and taught as a visiting professor at several
universities before joining the UsC Law and Philosophy faculties in 2002. he
concentrates his study on legal and moral philosophy. he is the director of the
UsC Center for Law and Philosophy, and editor in chief of the Journal of Ethics and
Social Philosophy, an online peer-reviewed journal in moral, political and legal
philosophy.
George Pavlakos is research Professor in globalisation and legal theory at the
University of antwerp and director of the Centre of Law and Cosmopolitan
values at the same institution. he is also sometime Professor in globalisation and
legal theory at the University of Glasgow. his published work, mainly in the area
of legal theory and legal philosophy, includes several edited collections and a
monograph, entitled Our Knowledge of the Law, all published by hart Publishing, as
well as another monograph in German, Rechtsontologie und praktische Vernunft, pub-
lished by Nomos verlag.
Veronica Rodriguez-Blanco obtained her first degrees in law and philosophy
from the Catholic University in Caracas, venezuela and the Central University of
venezuela (magister scientiarium in Logic and Philosophy of science). she pro-
ceeded to study english Law at Balliol College, oxford (mJur) and Legal
Philosophy at Corpus Christi College, Cambridge (PhD). in 2001, she joined
Birmingham Law school. her present research aims to advance a better under-
standing of the relationship between legal and moral objectivity. she is also inter-
ested in, and has written on, the methodological problems in legal theory such as
the distinction between normative and descriptive jurisprudence.
Corrado Roversi is a Lecturer in Law at the University of Bologna. his research
interests include the study of social and legal ontology, legal epistemology, the
theory of argumentation and the philosophy of normative language. Currently,
he is focusing on the concept of constitutive rules and on the general phenomenon
of normatively constituted concepts.
Katrien Schaubroeck is a post-doctoral fellow at the faculty of philosophy of
the University of Leuven. she has published in the fields of practical philosophy
including meta-ethics, normative ethics, theory of action and moral psychology.
Contributors ix
Scott Shapiro is Professor of Law and Philosophy at yale Law school. Before
his appointment at yale, he was Professor of Law and Professor of Philosophy at
the University of michigan. his areas of interest include jurisprudence, family
law, constitutional law, criminal law, constitutional theory, philosophy of action
and authority and rationality. he is the editor (with Jules Coleman) of The Oxford
Handbook of Jurisprudence and Philosophy of Law.