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Discussion with Brian H. Bix

The tigerish nature of legal normativity

Andrew Halpin

Abstract

This response to Brian Bix’s recent article on legal normativity considers the potential benefits of Bix’s approach in the light of contemporary debate upon the subject but argues for an alternative approach that focuses on the finding of legal normativity within a specific system of law and recognizes a normativity for those subject to that law whether they are well disposed to it or not. Three different ways in which a quality of normativity might be found for a legal provision concerning the conduct of a person are distinguished, so offering a richer and more illuminating analysis of the individual subject’s attitude or choice towards legal normativity. However, it is claimed that the overall picture advanced here supports a simple view of legal normativity, avoiding entanglement with moral controversies and complex theoretical speculations.

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1 Introduction

  • 1 Or, more fully, the subject. The modern preoccupation with participatory citizenship can easily o (...)

1In his contribution to this journal, Brian Bix has offered a “deflationary” (Bix 2018: 26) and “unambitious” (Bix 2018: 40) account of legal normativity, drawing on Kelsen and Hart. The modesty displayed in Bix’s account is intended to produce a more plausible explanation of legal normativity than those advanced by theorists who insist on a necessary connection between legal normativity and morality, or on a reliance upon the behaviour of officials to undergird legal normativity (Bix 2018: 40). The focus switches for Bix from the behaviour of officials to the attitude of the citizen1 towards that behaviour: the citizen may choose to regard the behaviour of officials as displaying normativity, or not (Bix 2018: 26 and 29-31). And as for morality, that may possess its own normativity but law has no need to borrow from it: each normative system possesses an independent, or sui generis, normativity (Bix 2018: 26, 34-35 and 36).

2Despite its modesty, Bix’s proposal is a bold one. It cuts across much of the current debate on legal normativity, which has assumed a particular intensity recently. If Bix is correct, a number of issues engaging theorists can be dispensed with as redundant, and the theoretical efforts so saved can be re-employed more profitably elsewhere. Within this brief comment, I shall first amplify what I take to be the distinctive features of Bix’s approach, and demonstrate how these might indeed serve to simplify the issues concerning law’s normativity. I shall then subject these features to critical questioning, and suggest that Bix’s strategy in developing a “thin” account of the normative nature of law, which avoids “substantial metaphysical assumptions or controversial moral claims” (Bix 2018: 37), is at the same time too thin and not thin enough. Too thin in restricting legal normativity to those who choose to accept it; not thin enough in taking the independence of legal normativity to be intelligible apart from morality, rather than to be discretely understood as the normativity of one system of law apart from another system of law.

3In a concluding section, I shall suggest that the modifications to Bix’s approach to legal normativity suggested here – leaner in a limitation to those subject to a specific system of law, more capacious in dealing with its citizens whether they are well disposed to it or not – may nevertheless preserve some of the attractions found in Bix’s approach, namely, the eradication of a number of theoretical distractions that tend to overcomplicate legal normativity.

2 Bix’s approach and its advantages

4The potential advantages of Bix’s approach can be appreciated from a cursory glance at the current literature on legal normativity. Within this literature there can be found strong connections between legal normativity and morality. Fred Schauer (2017) in a recent reflection on the contemporary preoccupation with the question of legal normativity considers that the issue can largely be dissolved in the longer standing concern of whether there is a moral obligation to obey the law. Although Schauer might regard his efforts as succeeding in deconstructing a distinctive legal normativity, that would hardly close down the investigation. The question now looming is what sort of moral normativity the law is dependent on, and how it gets transmitted to law so as to create the moral obligation to obey the law.

5Torben Spaak (2018) seeks to distinguish between the normativity of law as a necessary property of law, and as found expressed in the normative language of officials. Taking the former as more significant, Spaak considers it is only explainable in terms of the content of the law being morally satisfactory and legal officials complying with the rule of law. This contrasts with a legal normativity identified with an expressivist account of normativity dependent upon the very commitments made by legal officials, which has been attributed to Hart by Kevin Toh (2005: 87-88). Unfortunately, Hart’s own writings display a metaethical ambivalence towards legal normativity, as Shivprasad Swaminathan (2017) has noted. Moreover, Matthew Kramer (2018) has argued that (despite Hart’s changes in position and some ambiguity in his texts) any expressivism found in Hart should be restricted to an account of the pragmatics of legal discourse rather than its semantics, leaving open a cognitivist approach to legal propositions. On top of the controversy regarding Hart’s own position, the wider credentials of expressivism have suffered a fundamental challenge from Daniel Wodak (2017), which relates specifically to the problem expressivists have in dealing with different attitudes grounding different, even conflicting, normativities.

6In the light of the present state of the literature, Bix’s suggestion that legal normativity can be approached without making any connection to morality, without adopting any metanormative position on the role of officials, simply by examining the choice of the individual subject, appears extremely attractive. It is not just a matter of seeing a virtue in simplicity over complexity. The particular simplicity in Bix’s approach, in looking to the choice of the individual subject in accepting the law as normative, also avoids the contestability of moral criteria (what exactly is the morality undergirding the moral obligation to obey the law; what kind of morality delivers what is morally satisfactory). Intuitively, a view of legal normativity that is explicable by reference to the attitude of the ordinary person subject to law also appears more appealing than one dependent on Hartian exegesis or metaethical struggles.

3 Questioning Bix’s approach

7There are two aspects to the simplicity found in Bix’s approach to legal normativity, designed to deliver the advantages considered in the previous section. One aspect deals with the perspective that is crucial for the recognition of normativity; the other aspect deals with the location in which that normativity is to be found. So, Bix reduces the germane perspective to that of the subject who chooses to accept the law as normative, and then restricts the location of that normativity to the law itself. Excluded from normativity by this analysis, on the first point, are subjects who choose not to accept the law as normative (for example, regarding it as a coercive means of oppression (Bix 2018: 29-30)). The perspective of officials is not excluded in so far as officials may as subjects themselves accept the law as normative. What is rendered superfluous is the indirect impact of that perspective of officials in producing an “objective” normativity of law for other subjects (Bix 2018: 33). Any reach of the normativity of law to other subjects remains to be identified with the personal attitude of those subjects themselves. The second point then further limits the analysis of legal normativity by taking the individual attitude of subjects to be an attitude to law itself: accepting law itself as normative rather than treating it as normative because of its relationship to morality in some way or another (Bix 2018: 35-36, 38 and 39).

8The credibility of each of these two points is interrelated. The peculiar normativity of law has to be such that it makes it possible for an individual citizen to choose to accept that normativity while at the same time recognizing that the normativity does not exist for the citizen who chooses not to accept it. Bix draws an analogy with the rules of a game to convince us how this is possible. The rules of chess are normative in a way that is peculiar to the game of chess and are normative for those who choose to play chess, while they have no normative impact upon those who choose not to play the game (Bix 2018: 31).

9The peculiarity of normativity to the domain over which it applies is generalised, with illustrations from the norms of chess, etiquette and fashion (Bix 2018: 35); and is extended to the domains of moral reasons and prudential reasons, leaving the normativity of law firmly located in its own specific domain (Bix 2018: 36). However, as Bix himself acknowledges, the repercussions of choosing not to play chess, or of ignoring the dictates of fashion when selecting what to wear, are not on a par with rejecting the law. “Still”, he maintains, “while one may be unable to ‘escape’ or ignore the coercive power of the State, one can choose not to think of the State’s actions in a normative way.” (Bix 2018: 30-31)

10The crucial step in Bix’s argument turns on the significance of the subject’s choice in thinking of the law (the State’s actions) in a particular way, namely, a non-normative way. Clearly, it is possible to think of something in a particular way which will alter the effect that thing has upon oneself. If I regard the activity of hitting a small white ball into a sequence of holes as a dull and pointless exercise, then I shall be unable to embrace golf as a challenging and stimulating pastime. But it is also possible to think in denial of the qualities of something, which will not alter that thing at all. If I regard a tiger as an adorable pet, that will not alter the effect the tiger might have upon me.

11To push the illustrations a little further, in both cases the thinking of the subject does not alter the actual qualities of the thing thought of. In the case of golf, which is capable of being enjoyed as a pastime or not by individuals, my choice of the negative option will not alter those qualities of golf which allow it to be enjoyed by others as a valuable pastime. In the case of the tiger, the qualities of the tiger also persist irrespective of my choice in the matter. The problem is that the tiger’s qualities are not amenable to individual selection in quite the same way as golf.

12Sticking with the more familiar analogy of chess and law as used by Bix, and keeping to the topic of normativity to be addressed here, we can ask whether the thinking of the subject can alter the quality (normativity) of law and of chess in the same way. Chess may more obviously be like golf, with qualities (including its normativity) that are amenable to individual choice, but does law possess qualities (including its normativity) that are more tigerish? To fully answer this question, we need to consider in more detail where the quality of normativity might be found, in both chess and law. Within the constraints of this comment it is not possible to undertake this task in an exhaustive manner but I think that certain preliminary observations might assist in shedding some light on the present topic.

13In outline then, I suggest we can distinguish three different ways in which a quality of normativity might be found for a provision concerning the conduct of a person:

(1) From the existence of a provision within a specific system of norms, we can recognize a normative quality to its requirement of conduct under that system. It is a norm under French law for an individual to drive on the right-hand side of the road, but not under English law.

(2) Enforcement of that provision by an official recognizes the normative quality of the required conduct as conduct regulated under that system.

(3) The bearing of the provision upon an individual person whose conduct is addressed by the provision may be regarded as having a normative quality.

14The third of these can be further broken down into three senses in which a quality of normativity is recognized, the first two of which amount merely to recasting (1) and (2) from the standpoint of the person whose conduct is affected, but the third opens up a distinct perspective of the individual person:

(3a), as from (1), the quality of normativity is attributed to the requirement of conduct of the particular individual, whose conduct falls under a norm of that system.

(3b), as from (2), the quality of normativity is attributed to the conduct of the particular individual, where compliance with such conduct is regulated by mechanisms of official enforcement.

(3c), a quality of normativity as seen by the individual person over his or her conduct, which may, accordingly, be either (i) accepted, or (ii) rejected, by the individual concerned.

  • 2 For illuminating discussion of the implications of Antigone’s plight for legal and moral normativ (...)

15Before turning our attention to type (3) quality of normativity which is crucial for our present concerns, it is worth pointing out that type (2) is closely related to type (1) in the following way. The official occupied by type (2) normativity does not simply generate a critical (normative) attitude to the provision in isolation but regards it as possessing a normative quality as a provision of a particular system of norms. That is to say, type (2) amounts to an endorsement of type (1). Or, to put it another way, when Creon indicates he supports the enforcement of a legal provision upon the conduct of Antigone, he is not simply ascribing normativity to a legal provision but recognizing the normativity of that provision as part of the law of Thebes.2

  • 3 I take it that this is the only serious possibility; ie, that one cannot play chess and so fall u (...)

16The significance of type (3) normativity can be readily seen for chess. The key for upholding the normative quality of conduct of an individual is acceptance by that individual under (3c-i), since if the person declines to play chess and so operates (3c-ii),3 then any normativity under (3a) & (1), and (3b) & (2), no longer applies to that person.

17For chess, it is unlikely that (2) and so (3b) will be relevant – unless, for example, the person is playing in a tournament. But (1) and with it (3a) remains fundamental. The key move in (3c-i) has as a precondition the existence of the norms of chess in (1) and their potential for application to the person in (3a) in order for the person to be able to accept them in (3c-i), by playing chess.

18What of law? Can a similar move be made under (3c-ii) by the individual so as to nullify any normativity under (3a) & (1), and (3b) & (2), as no longer applicable to that person? It is far from obvious that this is the case. Rather a number of considerations point to the opposite conclusion. Which is to say, that even if an individual opts for (3c-ii) in the case of law it will have no impact upon the continuing recognition of a quality of normativity under (3a) & (1), and (3b) & (2). Pertinent considerations include two major points. As to (1) and so (3a), accepting the nullification would amount to considering the normative quality of any general provision in a system of law as only possessing that quality contingently over the subjects of that legal system. Driving on the right in France only possesses a normative quality for those French citizens (and resident aliens) who accept the provision as normative. Similarly, as to (2) and so (3b), accepting the nullification would leave officials enforcing legal provisions as norms for those who accepted their normativity and enforcing them as mere pretexts for coercion on those who did not accept their normativity.

  • 4 For a contrary view, see Schauer (2017: 12) but note the similarity Schauer sees is dependent on (...)

19In the absence of arguments to support these strange consequences of the nullification of a complete legal quality of normativity by the choice of the legal subject, the better view appears to be that this simply does not work for law as it does for chess.4 Legal normativity is tigerish. The fact that Bix does not make any such arguments is quite possibly due to the fact that he does not recognize the need to do so. But this in turn, I suggest, is because Bix has focused exclusively on an issue of (3c-i) or (3c-ii) type quality of normativity as fully representative of the quality of legal normativity. If the suggestion made here that this is but one of the different ways in which a quality of legal normativity might be found is accepted, then Bix’s conclusion is drawn too hastily.

4 Concluding remarks

20It might be thought that my proposal to recognize three different ways in which a quality of normativity might be found is not only unnecessarily complicated (where I appear previously to have been endorsing simplicity) but also renders the individual subject’s attitude or choice towards legal normativity wholly nugatory, as seen when the negative option is selected. But far from rendering it insignificant, the location of a type (3c-ii) attitude by the subject within a wider context than Bix considers, constituted by prevailing (3a) and (3b) normative qualities for law, just goes to show precisely how significant that (3c-ii) attitude is, opening it up to richer analysis. Is the attitude motivated by moral conviction, conscientious objection, anarchist tendencies, sheer sloth, or what precisely? This further inquiry is shut down if the attitude is taken to be nothing more significant than a choice not to play chess.

  • 5 Significantly, in their broadening out of Hart’s concept of law to take in the recognition of non (...)

21A further line of defence for the approach here is that it does still retain understandings of normative qualities for law that are (each) capable of being directly appreciated from the non-specialist perspective of the ordinary citizen. Although officials may get into the act, and may in complex modern systems of law be required to resolve controversies and smooth the workings of law, there is nothing in (3a), nor in (3b), which makes it necessarily incomprehensible to the individual subject without the mediation of an official attitude.5

22Moreover, the approach here endorses a particular normativity for law untrammelled by some kind of dependence on morality, given that normative quality is linked to the requirement of conduct under a specific system. Indeed, the approach insists not merely on distinguishing a legal normative quality from a moral normative quality, which is the level of distinction most commonly attended to by theorists, but on distinguishing the normative quality of conduct under one legal system from that under another legal system. As self-evident as the first distinction rightly appears to Bix, drawing on the different moral and legal approaches to a duty to intervene to rescue a stranger (Bix 2018: 38), so evident is the distinction between different legal systems: that same duty applies under French law but not under English law.

  • 6 Interestingly, Kramer (2018: 26-27 and 38) illustrates his minimalist approach with specific laws (...)

23Finally, in stressing the priority of (1) & (3a) over both (2) & (3b) and (3c), it can be suggested that the approach here endorses a simple view of legal normativity advocated by Bix (2018: 40), or the virtue of a minimalist theoretical approach supported by Kramer (2018), but even more so. The recognition of the normative quality of a provision under an existing system of law at (1) provides far more simplicity than an approach requiring attitudes towards a rule of recognition or a Grundnorm, whoever is holding those attitudes. This is not the place to commence a serious call for legal theory to jettison a rule of recognition or Grundnorm in its consideration of legal normativity, but as a closing remark it may be permitted to raise the prospect of such a strategy.6

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Bibliography

Brian BIX, 2018: Kelsen, Hart, and legal normativity. Revus. Journal for constitutional theory and philosophy of law (2018) 34. 25-42. URL: https://journals.openedition.org/revus/3984. DOI: 10.4000/revus.3984.

Keith CULVER & Michael GIUDICE, 2010: Legality’s Borders: An Essay in General Jurisprudence. Oxford: Oxford University Press.

Matthew KRAMER, 2018: Hart and the Metaphysics and Semantics of Legal Normativity. Forthcoming, Ratio Juris (2018) 31. Available at SSRN: https://ssrn.com/abstract=3116861.

Frederick SCHAUER, 2017: Deconstructing Law's Normativity. Available at SSRN: https://ssrn.com/abstract=3080437.

Torben SPAAK, 2018: Legal Positivism, Conventionalism, and the Normativity of Law. Jurisprudence (2018) 9. 319–344.

Shivprasad SWAMINATHAN, 2017: A Tale of Two Harts: The Paradox in Essays on Bentham. Legal Theory (2017) 23. 27–54.

Kevin TOH, 2005: Hart’s Expressivism and His Benthamite Project. Legal Theory (2005) 11. 75–123.

Detlef VON DANIELS, 2010. The Concept of Law from a Transnational Perspective. Aldershot: Ashgate.

Daniel WODAK, 2017: Expressivism and Varieties of Normativity. Russ Shafer-Landau, Oxford Studies in Metaethics 12. Oxford: Oxford University Press. 265–293.

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Notes

1 Or, more fully, the subject. The modern preoccupation with participatory citizenship can easily overlook the normative sway of law over non-citizen subjects, taking in both historical (slaves and women) and contemporary (aliens and migrant workers) instances. The view of legal normativity proposed here extends to all these cases of subjects, although for present purposes I shall at times follow Bix (and others he cites) in referring to the subjects of the law as citizens.

2 For illuminating discussion of the implications of Antigone’s plight for legal and moral normativity, see Wodak (2017).

3 I take it that this is the only serious possibility; ie, that one cannot play chess and so fall under (1) – and possibly (2) – while at the same time rejecting the (normative quality of the) rules of chess.

4 For a contrary view, see Schauer (2017: 12) but note the similarity Schauer sees is dependent on a failure to consider the possibility of differentiating “the enterprise” to which the obligation belongs; and then subsequently assuming (Schauer 2017: 13) that an unconditional obligation for law (distinct from the conditional obligation of chess) must be found “in the moral obligation to do what the law says just because the law says it” – importing a moral quality and ignoring the more specific legal setting (advanced here) which provides an obligation to do as a citizen of France what the law of France says.

5 Significantly, in their broadening out of Hart’s concept of law to take in the recognition of non-state “legal orders” or “legal regimes”, Culver and Giudice (2010) and von Daniels (2010) drop the role of officials at an early stage (and with that the rule of recognition).

6 Interestingly, Kramer (2018: 26-27 and 38) illustrates his minimalist approach with specific laws, but does not appear to account for the normativity of the rule of recognition under it.

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References

Electronic reference

Andrew Halpin, « The tigerish nature of legal normativity », Revus [Online], in print | 2018, Online since 31 October 2018, connection on 14 November 2018. URL : http://journals.openedition.org/revus/4709 ; DOI : 10.4000/revus.4709

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About the author

Andrew Halpin

Professor and Director of the Centre for Legal Theory, Faculty of Law, National University of Singapore (Singapore).

Address: Faculty of Law, National University of Singapore – Eu Tong Sen Building – 469G Bukit Timah Road – Singapore 259776 – Singapore.

E-mail: halpin [at] nus.edu.sg

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