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Discussion with Brian H. Bix

Bix on the normativity of law

Connie S. Rosati

Abstract

Bix would like to see legal theorists abandon the currently common view that law makes moral claims. He favours instead, an account of law’s normativity along the lines of Hart’s account (and relatedly, Kelsen’s). I argue that in order to make a persuasive case, Bix would need to offer more to those who find a view like Hart’s wanting. It is not clear that Hart’s approach has the advantages Bix claims for it, and in any case, Bix does not acknowledge or address the view’s critical defects. For these reasons, I conclude, Bix hasn’t really shown how “a more deflationary /…/ understanding of the nature of law is tenable,” or how it “may in fact work better” than morality-focused understandings of law’s nature—at least not if we want to understand the normativity of law. I suggest that efforts to understand law’s normativity would benefit from taking into consideration discussions of normativity in contemporary metaethics.

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1 As Brian Bix (2018) observes in “Kelsen, Hart, and legal normativity”, since the pioneering work of Hans Kelsen and H.L.A Hart, legal theorists have attempted to understand the “normativity of law”. But in order to understand law’s normativity, legal theorists need to address at least two key questions: first, what is “normativity”?; and second, how, if at all, does the normativity of law differ from the normativity of morality or of prudence? In setting forth questions like these, Bix draws our attention to the difficulty that attends efforts to understand the nature of law. As for the figures whose views he briefly examines, Bix contends that Kelsen’s theory provides insight into the “logic” of normative systems; and he claims important advantages for a view about the normativity of law like Hart’s.

2Bix’s overarching aim seems to be, at least in part, to plump for abandoning what he takes to be the currently common view that law makes moral claims. But in order to even begin to make a persuasive case, Bix would need to offer more to those who find a view like Hart’s wanting. It is not clear that Hart’s approach has the advantages he claims for it, but even if it does, it has critical deficits, which Bix doesn’t acknowledge or suggest any way to rectify. For these reasons, Bix hasn’t really shown how “a more deflationary…understanding of the nature of law is tenable,” or how it “may in fact work better” than morality-focused understandings of law’s nature—at least not if we want to understand the normativity of law.

  • 1 To avoid interpretive disputes that distract us from Bix’s main project in his paper, I shall simpl (...)

3Bix begins by offering what he recognizes to be a somewhat controversial reading of Kelsen.1 According to Bix (2018: 28), Kelsen sees each normative system as “self-contained and independent of every other normative system”. The norms within a particular normative system, such as morality or law, must ultimately be grounded in some foundational norm of that system. In the case of law, this foundational norm is the “Basic Norm” (Grundnorm). As concerns the foundational norms, however, they admit of no direct proof and are simply accepted or not by those subject to the relevant normative systems.

4As for Hart, Bix seems to conclude that Hart sees legal normativity as sui generis. Because Hart insists on the separation of law and morality, the normativity of law must not be the normativity of morality. And because Hart insists on the distinction between the “gunman situation” (suggested by Austin’s command theory of law) and an orientation toward the law that sees it as obligating and not merely obliging, Bix (2018: 34) concludes that he must “intend an understanding of legal normativity where legal reasons are something distinct from (mere) prudential reasons”. Perhaps these are, as Hart’s text sometimes suggests, a kind of sui generis “legal” reason. In any case, according to Bix (2018: 34-35),

It is sufficient for Hart that some people treat the law as giving reasons for action; this is a fact for which the descriptive or conceptual theorist should attempt to account. As Hart sees it, it is not for the theorist of law to be too concerned about what sort of reasons these might be, and whether they are well grounded.

  • 2 This has led some philosophers to see Hart as an expressivist about “internal statements of law”, t (...)

5Though each of these legal theorists calls our attention to the normativity of law, neither (to my mind) offers a compelling account of it, at least as Bix presents their views. For both Kelsen and Hart, the normativity of law is distinct from that of morality (or of prudence). And both see the law’ normativity as rooted in a kind of orientation toward the law, acceptance of the Basic Norm, in Kelsen’s case, and adopting the internal view of law, in Hart’s case.2 But even if, as Bix maintains, Kelsen offers us insight into the logic of normative systems, it is not clear how defending the existence of a foundational norm in normative systems like law is particularly informative about the normativity of law. After all, identifying such a norm does not itself tell us what normativity is, or how being grounded in a foundational norm makes a system like law normative, whatever normativity might be. Indeed, it is hard to see how acceptance of a foundational norm that does not admit of direct proof bears on law’s normativity without at least some preliminary answer to the questions with which we began. As for Hart (1961/1994: Ch. IX), leaving to one side the many connections between law and morality that he himself acknowledges, we seem to learn from him only what it is for officials (and some others) to treat the law as normative—as giving reasons, creating obligations, rights, and so on—not what it is for law itself to be normative.

  • 3 Of course, Hart offered numerous devastating criticisms of Austin’s theory. But notice that if law’ (...)

6Now perhaps there is no more to the normativity of law than certain actors within a legal system viewing the law “in a normative way”. Perhaps, what Austin failed to recognize in developing his command theory of law was just an orientation toward the law that is critical to the existence, character, and functioning of a legal system.3 Yet some have thought that there is more to the normativity of law than simply some people viewing it normatively.

7Hart and other legal theorists commonly compare the normativity of law to the normativity of games, like chess. But the normativity of a game isn’t simply a matter of players viewing it in a normative way or treating it as normative. Rather, the rules of chess provide correctness conditions for players’ moves, and intentionally aiming to follow the rules is constitutive of playing chess. Thus, someone who fails to follow the rules isn’t engaged in playing chess at all. Chess cheaters aim merely to appear to be following the rules, or to follow them just enough to escape detection, and so they either fail to play chess or at least fall short of doing so. To be sure, the rules of chess do not give reasons to anyone who declines to participate in the game. But the reasons some have for playing chess, while independent of the rules of chess, require adhering to those rules intentional following of which is constitutive of playing the game. One might insist that, likewise, for those who aim to follow the law or to be law-abiding citizens, aiming intentionally to follow the law is constitutive of being a law-abiding citizen. But this leaves unanswered the question of whether we have reason to follow the law or to be law-abiding, and whether those reasons in some sense come from law itself or from some source external to law. Hart (1961/1994: 114-117, 203) claims that officials and those citizens who accept the law and thus see it as giving reasons and creating rights and obligations, may do so for any number of reasons, including self-interested reasons. But this leaves unanswered whether law itself is normative and what its normativity consists in.

8Unfortunately, Bix’s discussion does not keep sufficiently distinct the following questions: (1) do officials (and some citizens) see or view the law as giving them reasons?; (2) what sorts of reasons do they view the law as giving them?; (3) does the law actually give them reasons?; and (4) what sorts of reasons does it actually give them? Consider some examples. Bix (2018: 34) writes, “If under a Hartian analysis someone accepts the legal system as giving reasons for action, what kind of reasons are those? Is there any alternative to understanding these reasons as moral reasons?” We might understand Bix as asking, alternatively, “what kind of reasons does someone who views the law as giving them reasons think those reasons are? Is there an alternative to their thinking these reasons to be moral reasons?” or “what kinds of reasons does the legal system give them? Is there an alternative to their being moral reasons?” Bix (2018: 36) asks, “for those who accept the law as giving them reasons for action, why should we assume that these reasons are moral reasons?” We might understand him as asking, alternatively, “why should we assume that they believe the reasons law gives them are moral reasons?” or “why should we assume that the reasons law really gives them are moral reasons?” So is Bix asking whether people who accept the law see it as giving them moral (or prudential) reasons? Or is he asking what kinds of reasons it actually give them? I’m just not sure.

9In any case, these questions are distinct. And once we appreciate that, we must ask, which questions legal theorists should primarily concern themselves with. If our aim is to understand the nature of law, should we be concerned with whether people see the law as giving them reasons and with the kind of reasons they see the law as giving them (questions 1 and 2)? Or should we be concerned with whether the law does give reasons and with the kind of reasons it gives (questions 3 and 4)? No doubt many view the law as giving them reasons, and we ought to attend to this phenomenon in trying to understand law. But if law doesn’t really give them reasons, then it matters only psychologically, and perhaps motivationally, whether they view law as giving them moral as opposed to merely prudential reasons. What sorts of reasons are in play matters to our understanding of the nature of law only if law actually does give them reasons.

10So where does Bix come down on the normativity of law? Evidently he is inclined toward the general approach of Kelson and especially Hart. According to Bix (2018: 37), the view that the law’s normativity has no direct connection to moral normativity, but is rather something that individuals either do or do not presuppose, has the advantage that

11it accounts for the normative nature of law, at least in a thin way, without the requirement of substantial metaphysical assumptions or controversial moral claims. This approach agrees with the new view that denies that the law always creates moral obligations—or even that it almost always does so, or does so presumptively, or does so as long as the legal system is otherwise “generally just.

12But Bix has not explained how this approach accounts for the normative nature of law at all. How do we get from the “internal view” some take of law to anything at all about the nature of law, let alone about its normative nature? How do we get from some people treating the law as giving reasons to anything about the nature of law, such as its being reason-giving?

13At times, Bix’s discussion of the normativity of law seems particularly concerned with rejecting any but a contingent, case-by-case connection between the normativity of law and moral normativity. As he (Bix 2018: 37) describes the approach he has discussed, it

goes against the increasingly common view in legal theory that it is an essential aspect of law that it claims to be authoritative, morally right, or at least ‘correct’ in some general sense. Why should one assume that law makes moral claims (let alone by its nature always makes such claims)?

14But I doubt that those who view the law as making moral (or other normative) claims simply assume that it does. More likely, they are aware of shortcomings of the view Bix favours and suspect there is more to the normativity of law than that view allows.

  • 4 Scanlon (1998); Parfit (2011); Raz (2000).
  • 5 The former view is commonly attributed to Moore (1903/1993). The latter view has recently been revi (...)

15Although Bix clearly appreciates that we need to address the question of what it is that we seek to understand about law when we seek to understand its (apparent) normativity, he does not himself address it. Bix doesn’t offer an account of normativity; nor does he draw on any of the accounts of normativity currently on offer. In my view, legal theorists would benefit from more closely considering the now expansive, if unsettled, literature in metaethics on normativity. According to philosophers such as Scanlon, Parfit, and Raz, we should understand normativity in terms of reasons; and Bix sometimes seems to understand the normativity of law as having to do with reasons.4 But as David Copp (2007: 256) has argued, the notion of a reason is itself normative, and so appealing to reasons (or being reason-giving) does not really explain what normativity is. The same might be said about current efforts to explain normativity in terms of value or in terms of “fittingness.”5 There are, of course, yet other accounts of the nature of normativity, such as those that have been offered by expressivists; and each of these accounts faces problems. My point is not that a study of the current philosophical literature would resolve the issues Bix explores, but simply that it might help legal theorists to begin to think more clearly about what they are trying to understand about law when they try to understand its normativity.

  • 6 Copp 1995: 22-23.

16At the very least, it might help to clarify what is at issue between those who favour the sort of view Bix favours and those who do not. As an illustration, consider Copp’s “standard-based” account of normativity. According to that account, law makes what he calls “Type I” normative claims. Whereas the Type II normative claims of morality (and prudence and epistemology) entail “nontrivially that a certain standard is appropriately justified,” the Type I normative claims of law entail only that a certain standard has currency in the system, and so not that it is appropriately justified.6 Law is certainly at least Type I normative. The question is whether that exhausts the normativity of law. One needn’t be a natural law theorist to suspect that law’s normativity isn’t (merely) Type I. Nor, contrary to what Bix may suppose, need one therefore think that the normativity of law just is the normativity of morality or of prudence.

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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.

David COPP, 1995: Morality, Normativity, and Society. Oxford: Oxford University Press.

David COPP, 2007: Moral Naturalism and Three Grades of Normativity. In Morality in a Natural World. Cambridge: Cambridge University Press. 249-283.

Herbert HART, 1961/1994. The Concept of Law, Second Edition. Oxford: Clarendon Press.

Chris HOWARD, forthcoming: The Fundamentality of Fit. Oxford Studies in Metaethics, Vol. 14. Ed. Russ Shafer-Landau. Oxford: Oxford University Press.

Conor McHUGH & Jonathan WAY, 2016: Fittingness First. Ethics 126. 575-606. DOI: 10.1086/684712.

George E. MOORE, 1903/1993: Principia Ethica, Revised Edition. Cambridge: Cambridge University Press.

Derek PARFIT, 2011: On What Matters, Volume I. Oxford: Oxford University Press.

Joseph RAZ, 2000: Explaining Normativity: On Rationality and the Justification of Reason. Normativity. Ed. Jonathan Dancy. Oxford: Blackwell. 78-99.

Thomas M. SCANLON, 1998: What We Owe to Each Other, first edition. Cambridge: Harvard University Press.

Kevin TOH, 2005: Hart’s Expressivism and His Benthamite Project. Legal Theory 11. 75-123. DOI: 10.1017/S1352325205050044.

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Notes

1 To avoid interpretive disputes that distract us from Bix’s main project in his paper, I shall simply accept his presentation of both Kelsen’s and Hart’s views. That is to say, for purposes of discussion I do not challenge Bix’s claims about the substance of Kelsen’s view or of Hart’s view.

2 This has led some philosophers to see Hart as an expressivist about “internal statements of law”, those made by someone who takes up the internal view. See Toh (2005).

3 Of course, Hart offered numerous devastating criticisms of Austin’s theory. But notice that if law’s normativity is just a matter of some viewing it normatively, then this particular omission from Austin’s theory is hardly damaging. After all, Austin could allow that some (the officials) take the internal view with respect to the sovereign’s commands, while the bulk of the populous may simply obey, without otherwise adjusting his theory.

4 Scanlon (1998); Parfit (2011); Raz (2000).

5 The former view is commonly attributed to Moore (1903/1993). The latter view has recently been revived by McHugh and Way (2016) and Howard (forthcoming).

6 Copp 1995: 22-23.

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References

Electronic reference

Connie S. Rosati, « Bix on the normativity of law », Revus [Online], in print | 2018, Online since 15 November 2018, connection on 11 December 2018. URL : http://journals.openedition.org/revus/4738 ; DOI : 10.4000/revus.4738

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About the author

Connie S. Rosati

Professor of Philosophy at the Department of Philosophy, University of Arizona (USA).

Address: Philosophy Department – University of Arizona – 1145 E. South Campus Drive – Social Science Building 213 – Tucson, AZ 85721 (USA)

E-mail: csrosati [at] email.arizona.edu

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