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Symposium on the internal legal positivism

Redondo on the normativity of law

Ezequiel Monti
This article is a translation of:
Redondo sobre la normatividad del derecho [es]


In her latest book, Positivismo jurídico “interno”, Cristina Redondo defends a novel account of the normativity of law. According to Redondo, the law does not claim legal rules to be substantive reasons to act as they require. Rather, she argues, law only intends legal rules to be recognized as logically non-defeasible rules to be used as premises in formal arguments whenever they apply. Thus, the law claims legal rules to be reasons only in a linguistic-formal sense, independently of their impact on what people ought to do. Here, I shall argue that Redondo's arguments against the view that law intends legal rules to be substantive reasons (or to be treated as such) are misguided, and that her own positive proposal according to which law claims legal rules to be reasons in a merely formal sense ought to be rejected.

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1 Introduction

  • 1 Redondo 2018: chap. 2.

1Reading Cristina Redondo’s work is always fruitful and enjoyable. Her latest book, Positivismo jurídico “interno” ["Internal" Legal Positivism], is no exception. There, she defends a novel and interesting account of the normativity of law.1 In this paper, my aim is to critically examine Redondo’s account and the arguments she offers in its favour.

2Redondo’s starting point is the observation that the law claims or intends to guide people’s behaviour by rules. In this context, the expression "law" refers, I take it, to legal institutions (Congress, courts, etc.), or their members (legislators, judges, etc.), or to a subset of those institutions or individuals.

  • 2 Let us suppose that a corrupt king accepts a bribe in exchange for enacting a rule requiring his su (...)

3But how should we understand the claim that legal institutions intend to guide people’s behaviour by rules? It cannot mean that whenever legal institutions enact a rule they have the intention of guiding people’s actions. The intention with which legal institutions act is, after all, contingent.2 I take it that Redondo’s claim is rather that, by enacting a rule, legal institutions communicate the intention of guiding people’s actions by way of that rule. It is possible to enact a rule without the intention of guiding people's behaviour. But it is not possible to enact a rule without communicating the intention to guide people's behaviour: enacting a rule consists, at least partly, in communicating the intention that people be guided by it.

  • 3 Not all legal rules are enacted by agents (e.g., customary law). To generalize the point made in th (...)

4But what do legal institutions intend when they intend that people’s actions be so guided by the rules they enact? A common answer is that legal institutions seek to give the rule’s addressees a reason to act as the rule requires. Thus, by enacting a rule, legal institutions would be communicating the intention to give the rule’s addresses a reason to act as the rule requires by way of that very act of communication.3

5Furthermore, legal institutions do not simply intend to give people some reason to do what the rule requires. Rather, they intend to give them a reason of a special kind, that is, they intend to impose an obligation on them to act as the rule requires.

  • 4 This expression is Redondo’s. More on it will appear later.

6Thus, in enacting rules, legal institutions communicate the intention that the enacted rule be (or “work as”)4 a reason for action of a distinct type. But, of course, they don't always achieve what they set out to do. Redondo claims that a rule is a “practical” or “genuine” rule when the institution that enacted it actually succeeds in doing what it communicated the intention to do, that is, if and only if the rule actually is, or works as, a reason for action of the relevant distinct type. That is the notion of a genuine rule that Redondo is interested in examining more closely. 

7To establish her argument, she first distinguishes three different senses in which it can be said that genuine rules are or function as reasons for action. Second, she reconstructs two objections that defenders of the thesis that law claims that legal rules are or function as reasons for action must address. The first objection is an epistemic one, according to which it is impossible to know whether a genuine rule so understood exists or not. The second objection is a practical one, according to which rule-following is irrational. Finally, she argues that only in one of the three different senses in which it could be claimed that genuine rules are or function as reasons for action is it plausible to hold that law necessarily claims that legal rules are genuine rules. The argument is that only if the thesis is understood in this way is it possible to respond satisfactorily to the epistemic and practical objections in a way that is compatible with legal positivism.

8My aim in this paper is to critically examine Redondo’s argument. I shall proceed as follows. First, I reconstruct Redondo's distinction between the three different senses in which it can be said that genuine rules are or function as reasons, namely, an objective, a subjective, and a formal sense (Section 2). Second, I explain why Redondo's arguments against the thesis that the law claims that legal rules are reasons in a subjective (Section 3) or objective (Section 4) sense are inadequate. Finally, I argue against Redondo's thesis that law claims that rules are reasons only in a merely formal sense (Section 5).

2 Rules and reasons

2.1 Substantive reasons, formal reasons and defeasibility

9Redondo distinguishes two senses in which it can be said that a normative statement is or functions as a reason for action.

10On one hand, a normative statement can express a substantive reason for action, which could be conclusive in a particular case, depending on its relative weight.

11On the other hand, a normative statement can be a premise in a formal argument, in which, by applying the appropriate rules of inference, a normative conclusion is drawn regarding a particular case. In this sense, normative statements can be formal reasons.

12To these two senses in which normative statements can be reasons, there are two corresponding senses in which normative statements can be defeated.

13From the point of view of substantive reasons for action, a normative statement may express a totally weightless consideration, in which case it does not express a reason at all. Thus, a distinction must be made between rules that are invariably relevant (they constitute a reason to act as required in all cases to which they apply) and rules that are not reasons or are only reasons in some cases, but not all. However, the fact that a rule expresses an invariably relevant reason does not imply that one always ought to act as it requires, all things considered. It is possible for a normative statement to express a reason that is pro tanto onlyPro tanto reasons count in favour of performing a certain action but they can be defeated by weightier reasons that count against doing so. Thus, it is possible for a normative statement to express a pro tanto reason for an agent to Φ but that, all things considered, the agent ought not to Φ. Thus, a normative statement is substantively defeasible if and only if it expresses a merely pro-tanto reason.

14From the formal point of view, a conditional normative statement is logically defeasible if and only if modus ponens is not applicable to it. Thus, the antecedent is not a logically sufficient condition of the consequent. It is understood that the antecedent is related to a set of unstated assumptions and that only in conjunction with them it would constitute a sufficient condition for its consequent. Thus, logically defeasible normative statements are subject to exceptions that render them, on Redondo’s terms, “internally inapplicable”.

15The second type of defeasibility (logical defeasibility) affects the identity of a rule and the type of relationship that it establishes between its antecedent and its consequent (identification/structure). In contrast, the first type of defeasibility (substantive defeasibility) concerns its capacity, as a substantive reason, to determine what ought to be done all things considered, but it leaves intact its content and the possibility of drawing conclusions from it.

2.2 Three interpretations of the notion of genuine rules

16Armed with the abovementioned distinction between substantive and formal reasons, Redondo distinguishes three senses in which it can be said that genuine rules are or function as reasons for action, namely:

17(aSubstantive-objective sense: According to a first interpretation, a rule is a genuine rule if and only if it objectively is (or expresses) an invariably relevant substantive reason of a distinct type.

18(b) Substantive-subjective sense: According to a second interpretation, a rule is a genuine rule if and only if the agents to whom it is addressed treat it as (or they take it to express) an invariably relevant substantive reason of a distinct type.

19(c) Formal-linguistic sense: According to a third interpretation, “following” a legal rule implies no more than a linguistic and formal behaviour within a normative discourse, which says nothing about the subjective reasons that effectively motivate action or about the objective reasons that count in favour of performing an action. In this sense, a rule is a genuine rule if and only if: (i) it is recognized as a logically non-defeasible conditional; (ii) it is offered as a reason in the formal sense in all cases where it is applies; and (iii) where appropriate, the reasons why a particular case - which is recognized as falling within its scope - is not finally decided in accordance with the rule, are explicitly stated.

20Note that, in one important respect, the third sense or interpretation is weaker than the other two. For rules to be, or to be treated as, invariably relevant substantive reasons, they must be, or be treated as, logically non-defeasible. In contrast, rules can be recognized as logically non-defeasible without being, or being treated as, invariably relevant substantive reasons. Redondo's central thesis is that what law claims is that legal rules are reasons in this merely formal and weaker sense. It does not claim that legal rules are substantive reasons, whether in a subjective or an objective sense. This is, I believe, a mistake. In the next two sections, I will examine and reject Redondo's arguments against the thesis that what law claims is that rules are substantive reasons in a subjective (Section 3) or objective (Section 4) sense.

3 The law intends that legal rules be treated as invariably relevant substantive reasons      

3.1 The epistemic objection

21If genuine rules are interpreted as reasons in the substantive-subjective sense, then what the law necessarily intends is that legal rules be treated by citizens as invariably relevant substantive reasons. Redondo introduces two fundamental arguments against this thesis.

22The first is an epistemic objection. The idea is that it is impossible to determine whether an agent treats a legal rule as expressing an invariably relevant substantive reason or not. Therefore, it would be impossible to determine whether legal rules are genuine rules in the relevant sense. Redondo identifies two difficulties in this regard.

23First, even if an individual always acts according to a given rule, it is impossible to determine whether she does so motivated by the rule. Even if she explicitly invokes the rule as a justification for her behaviour, we could not on that basis conclude that her conformity to the rule were motivated by it. After all, individuals often invoke rules to rationalize actions in which, in fact, the rules played no motivational role. Therefore, conformity with a rule is not sufficient to conclude rule following.

24Second, the fact that an individual fails to conform to a given rule does not mean that she does not regard it as an invariably relevant substantive reason. Indeed, it is possible for her to consider that, although invariably relevant, it is also substantively defeasible. The problem is that it is epistemically impossible to distinguish between those cases in which an agent violates a rule because she does not regard it as a reason for action and those cases in which she violates it because, although she does regard it as a reason, she judges that it is defeated by weightier reasons that count against conforming to the rule. Therefore, breach of the rule is not enough to conclude absence of rule-following.

25This objection must be rejected. First, it is not clear why it would be a problem if it were epistemically impossible to determine whether individuals act as the law intends them to act. Perhaps the idea is that, in that case, the law (say, courts or judges) wouldn’t be able to control whether individuals act as intended. But it is a mistake to believe that the law necessarily controls whether agents act as it intends them to act (more on this later).

26Second, it is simply false that it is epistemically impossible to determine whether someone regards a rule as a reason or not. It is true that it is possible for someone to conform to a rule without acting motivated by it. But this does not imply that there could be no further evidence that would allow us to reasonably determine whether someone is motivated by the rule or acted on other reasons. If an agent normally acts according to a given rule, she must act motivated by certain considerations that explain her behaviour. If the best explanation is that her actions are motivated by the rule, then we have reason to believe that that is indeed the case. To determine the best explanation of an agent’s behaviour, what the agent says and believes about her own motivation, how she reacts to other people’s breaches, what we generally know about human motivation, etc., is relevant evidence. It is also true that sometimes people lie or have false beliefs about what motivates their actions. But this does not imply that we are never justified in relying on their testimonies. We know they lie, when they do, or that they are mistaken about their own motivations, when they are, because we have evidence that they are lying or that they are mistaken.

27It is also possible for someone who regards a certain rule as an invariably relevant reason for action to deliberately fail to act as it requires. But again, there are many elements that serve to distinguish between the breaches of someone who regards a rule as a reason and someone who could not care less about it. For example, if I believe that I have an obligation to help you move houses next weekend because I have promised to, but nonetheless I fail to act as promised in order to take care of my sick mother, I will probably call to apologize or feel remorse or try to make it up to you in some way. But if I thought that my promise does not bind me, that it is not a reason at all, then I would probably behave and feel differently. Or if I acted in the same way, it would be for reputation related reasons, etc., in which case, again, there would probably be elements that allow us to determine that was the case.

  • 5 Someone could argue that my reply to Redondo’s epistemic objection is superficial or incomplete at (...)

28To sum up, our motivations are, of course, difficult to ascertain. But they are not epistemically inaccessible. We often do know that someone acted motivated by or did not do so motivated by y. And there is no reason to believe that the rules are special in this regard.5 

3.2 The “inquiring motives” objection

29Redondo's second objection runs as follows. If it were true that the law intends that we accept legal rules as substantive reasons, this would imply that the law intends not only that we act in a certain way but that we do so motivated by certain reasons. But that would be, the objection continues, deeply illiberal. And, in fact, neither citizens nor judges are investigated (by other judges or officials) about the motives for which they act, which suggests that the law does not intend that we act for a particular motive.  

30This second objection must also be rejected. First, how the law intends us to act is one thing, but what it monitors or controls is another. It is possible that the law wants us to act motivated by the rules, but that nonetheless the task of the judges is limited to controlling that we act according to the rules, regardless of our motives. And I do not see why it would be illiberal for the law to merely intend that we act motivated by certain reasons, insofar as it doesn’t pretend to control whether we actually do so.

31Second, the thesis could be reformulated to avoid this criticism (and also, incidentally, the epistemic objection). Thus, the thesis could be that what the law intends is that we externally act as someone motivated by the rules would. As far as I can see, this variation of the substantive-subjective conception preserves all the advantages of Redondo's original formulation while avoiding its criticisms.

3.3 The practical irrationality objection

32Redondo also considers a practical objection, according to which treating rules as invariably relevant substantive reasons is irrational. This would imply that the law necessarily intends that we act irrationally, which is implausible. Redondo rejects this objection. Although I agree that it should be rejected, I find her arguments unconvincing.

33Reconstructing the practical irrationality objection is not easy because Redondo includes a variety of objections under this label that all are very different from each other. A first reason why someone could consider that following rules is irrational goes as follows. Legal institutions enact rules based on its addresses’ reasons (i.e., the so-called “underlying reasons”). The rules, however, sometimes require actions that are not justified in light of the underlying reasons and even actions that, according to the underlying reasons, the agent ought to refrain from performing. However, it is assumed that genuine rules are a reason to act as required even (and especially) when what they require is not justified according to the balance of underlying reasons. Otherwise, they wouldn't make any practical difference. Thus, in a first approximation, the irrationality objection poses the following challenge: how can a rule be a reason in those cases in which the reasons that justified its enactment (i.e., the underlying reasons) require disobeying it?

34Note that the objection assumes that the explanation of why rules give reasons for action depends, in some way, on the underlying reasons. Indeed, if the explanation of why rules give reasons did not appeal to the underlying reasons, why would it be a mystery for rules to give reasons even when the underlying reasons recommend disobeying it? For the record, I believe that the characteristic way in which legal rules give reasons does not necessarily appeal to the underlying reasons, so this is not a problem for me.  

35But it is true that one of the standard explanations of why genuine rules are or give reasons does crucially appeal to the underlying reasons. Joseph Raz argues that rules are reasons because they help people improve their compliance with the underlying reasons. In a nutshell, the idea is that rules are reasons to act as they require when by following them the agent will improve her conformity with the underlying reasons (relative to the level of conformity with those reasons that she would achieve by following her own judgment about what they require). But, crucially, rules can only help people to improve their conformity with reasons if they follow the rules "disregarding" (more on this later) what the balance of underlying reasons requires in each particular case.

  • 7 Redondo 2018: 120.

36Against this background, the challenge posed by the practical irrationality objection can be understood in a different way, namely: how can it be rational to disregard the underlying reasons? Someone could argue as follows. A rational decision simply is one that is based on the prior consideration of all the applicable reasons.7 Thus, to the extent that following rules implies disregarding the underlying reasons, then it is, by definition, irrational.

37Redondo concedes that following rules is, indeed, irrational insofar as it involves failing to consider all the applicable reasons. However, she argues that the fact that following rules is irrational in that sense does not imply that it is not the decision-making procedure that we ought to adopt, all things considered. Thus, she claims (Redondo 2018:121) that although

the decision procedure supported by rules does not have or does not promote the value of rationality, this is not the only applicable value, nor is it always the one with the greatest weight, so it is perfectly possible […] that in certain circumstances it is justified to decide irrationally.

38This reply is inadequate. On the one hand, it is insufficient to respond to the first challenge. On the other, it concedes too much to the second challenge

  • 8 Darwall 2009: 16.

39Let us suppose that it would indeed be better, all things considered, if I were to treat a given rule as an independent reason to act as it requires, while disregarding the underlying reasons. This still would not be enough to adequately answer the first challenge posed by the irrationality objection. The fact that I have reasons to treat a rule as if it were an independent reason is not enough for it to actually be an independent reason. Not all reasons for having an attitude show that attitude to be fitting or appropriate. A reason for an attitude is a reason of the right kind, if and only if it is “something on the basis of which someone could […] come to hold the attitude as a conclusion of a process of considering […] whether to do so.8 Consider the following example:

A Prize for a Belief:

An eccentric millionaire offers John $1,000 if he just believes that p.

40John has a practical reason to bring it about that he believes that p (i.e., that he will win the prize if he does so), but that reason does not make believing in p a fitting or appropriate attitude (only truth-related reasons are of the right kind).

41Analogously, the fact that by treating the rule as an independent reason I will improve my conformity with reasons in the long run, is a practical reason to treat it as such. But it is not a reason that makes it appropriate for me to so treat it: only considerations related to whether the rule actually is facts that count in favour of doing what it requires in this particular case are reasons of the right kind for treating it as such.

42In this regard, the law’s intention that we treat legal rules as reasons with independent weights, even when they are not, would be tantamount to John’s friend’s intention that he form the belief that in order to win the prize even though is obviously false. All things considered, it is better for John to believe that (he will earn $1,000 if he does). However, the fact that makes it the case that it would be better for John to believe that is not a reason of the right kind for John to believe that pAnd, in this sense, it would be unfitting and hence irrational for John to believe that (he lacks reasons of the right kind for believing that p). Likewise, in a sense, it would be better for me to treat legal rules as reasons (in the long run, I will improve my conformity with the underlying reasons if I do so). However, the fact that makes it the case that it would be better for me to treat legal rules as if they were independent reasons is not a reason of the right kind for me to so treat them. In this sense, it would be irrational for me to follow legal rules (i.e., to treat them as reasons) unless they actually are reasons to act as they require. But the objection is, precisely, that rules are not independent reasons (how could they be when the underlying reasons recommend disobeying it?). And the point is that it is implausible for the law to necessarily intend that we treat rules in a way that is inappropriate or unfitting (and, in this sense, irrational).

  • 9 For my own answer to this objection, see Monti 2018.

43As I anticipated, I do not believe that this objection hits it target.9 My point here is simply that to answer it, it is not enough to show, as Redondo does, that there are circumstances in which, all things considered, it would be better to treat rules as reasons because this does not show that rules actually are reasons. And if they are not, then no matter how good it would be for us to treat them as if they were, it would still be inappropriate and irrational for us to so treat them.

44Note that this way of formulating the objection concerns the first challenge rather than the second. The challenge, so understood, is the following: how could the fact that by following the rule I will improve my conformity with the underlying reasons in the long run count in favour of doing what the rule requires in this particular case where, in fact, the underlying reasons recommend disobeying it? Of course, the fact that by following the rule I will improve my conformity with the underlying reasons in the long run might be a practical reason to convince myself that the rule is an independent reason to act is it requires, even in those cases where the underlying reasons recommend otherwise. But it is not a reason to do what the rule requires in this case. In this way of understanding the challenge posed by the objection, the fact that following rules involves disregarding the underlying reasons is neither here nor there.

45What should we say, then, about the second objection according to which following rules is irrational simply because it involves disregarding the underlying reasons? Here Redondo concedes too much. In fact, it is not the case that the “rule-based decision procedure” implies that individuals ought not to consider all the applicable reasons, or that having done so, they ought not to act on the balance of reasons. What defenders of the Razian view of the rationality of rule-following are committed to is, simply, the claim that amongst the reasons that agents must evaluate, there are exclusionary reasons, that is, reasons not to act for certain reasons. The point is not that following rules requires that the agent sometimes act against the balance of reasons. The claim is much weaker, namely, that following rules sometimes requires agents to act against the balance of first-order reasons. But this is only the case because acting against the balance of first-order reasons is what the agent ought to do all things considered, that is, considering not only her first-order reasons but also her second-order reasons, i.e., her reasons to act or not to act for first-order reasons. Thus, following rules requires the agent to “ignore” or “disregard” some reasons (i.e., it requires the agent not to act for certain reasons) because there are other reasons (exclusionary reasons) for her to do so. I do not see what the irrationality is supposed to be here. If anything, it would be irrational for the agent to act for reasons she has decisive reasons not to act for. Of course, someone might argue that the very concept of exclusionary reasons does not make sense, or that there are no exclusionary reasons, or that exclusionary reasons cannot be justified in the way that Raz claims they can be justified. But these are objections of an entirely different nature. The discussion would not be between those who believe that it is justified to act irrationally (against the balance of reasons) and those who deny it, but between those who argue that amongst the reasons that make up the balance of reasons there are exclusionary reasons and those who deny it. 

  • 10 See Dancy 2004.

46One final clarification. Redondo associates this series of objections with particularism.10 But need not be a particularist to raise any of these objections (nor is one forced to accept that they are correct if one turns out to be a particularist). Are there any practical irrationality objections especially associated with particularism? An objection of this sort that, one which again Redondo does not adequately distinguish from the previous ones, is the following. According to the thesis we are considering, the law intends that people treat rules as invariably relevant substantive reasons. But, says the particularist, there are no invariably relevant reasons. The fact that a fact counts in favour of an action in one context does not ensure that it counts in favour of that action in all contexts. Therefore, to the extent that following rules implies treating them as invariably relevant reasons, following rules is irrational. I will consider this objection in the next section, when examining the thesis that law claims that rules are reasons in an objective sense.

4 The law claims that legal rules are invariably relevant substantive reasons

47If genuine rules are regarded as being reasons in an objective-substantive sense, then in issuing a rule, legal authorities would be communicating the intention that the rule be an invariably relevant reason for its addresses to act as it requires (not that they treat it as such) by virtue of that very act of communication (i.e., by virtue of its having been thus enacted). Unfortunately, Redondo focuses her critical efforts on the substantive-subjective conception, without saying much about why we should reject the substantive-objective one. This is surprising, among other reasons, because neither the epistemic objection nor the “inquiring motives” objection apply to the claim that law intends that rules be objective reasons.

48Indeed, there is no special epistemic difficulty in determining whether legal rules are reasons for action (contrary to what might be the case in determining whether people are motivated by them). And the fact that the law claims that legal rules are reasons to act as they require does not imply that it intends that people be motivated by them. The law only claims that legal rules are reasons to act as they require. It need not claim that there are reasons for people to act as they require because they so require rather than for any other reason.

4.1 Objective reasons and legal positivism

49But then, why reject this account of the normativity of law? Redondo's argument is that it is incompatible with legal positivism. This objection is, I believe, incorrect for the following reasons.

50First, as Redondo herself seems to concede, there is a weak version of the thesis under consideration that is perfectly compatible with legal positivism. According to this weaker version, legal institutions simply intend that legal rules be invariably relevant reasons. This is perfectly compatible with claiming that legal rules often are not, in fact, reasons to act as they require. It is even compatible with claiming that the relevant officials (judges or legislators) are not or need not be sincere when asserting that they are reasons, or when communicating the intention that they be reasons.

51Second, even on the stronger thesis according to which individuals necessarily have objective reasons to act as they are legally obliged to act is compatible with legal positivism. Legal positivism is compatible, in fact, with the thesis according to which having a legal obligation to Φ consists in having reasons of a certain kind to Φ.

52To understand this point, we must distinguish between legal rules (and what they require), on the one hand, and the content of the law, that is, the legal obligations and legal rights that obtain in virtue of legal rules, on the other.

53For a legal institution to enact a rule requiring citizens to Φ in circumstances C is, roughly, for it to communicate the intention of imposing upon citizens the obligation to Φ in circumstances C by that very act of communication (that is, to communicate the intention to give citizens a reason of a distinct type to Φ in circumstances C). Thus, we shall say that there is a legal rule that requires citizens to Φ in C, roughly, if and only if a legal institution communicated the intention to impose citizens an obligation to Φ in C.

54If the legal institution in question has the practical or moral authority that it claims to have, then, it will succeed in imposing the obligations (reasons) that it communicates the intention to impose. Legal obligations are those obligations that legal institutions create in this way, by virtue of their authority. If, on the other hand, the legal institution in question does not have the authority that it claims to have, then it will fail to create the obligations (reasons) that it communicated the intention to create. And, consequently, it will not have succeeded in creating any legal obligation (reason).

55According to this account, legal obligations are reasons for action of a distinct type. And yet, this account is consistent with three theses normally associated with legal positivism, namely:

T1. The content of law is determined by social facts only.

T2. It is possible for a legal rule to require that A Φs but for A to have no reason to Φ.

T3. It is possible for A to have a legal obligation to Φ but that, all things considered, A ought not to Φ.

56Let us begin with (T1). For it to be true, it is sufficient that the obligations that legal institutions create by virtue of their authority are identical to those that they communicate the intention to create. It is true that, in this conception, the existence of legal obligations depends on the existence of moral facts. But this does not imply that moral facts determine the content of the law. The moral facts explain the authority of the legal institution in question, that is, they explain why the enacted legal rule succeeds in creating an obligation. They do not, however, determine the content of that obligation. The content of the obligation is completely determined by the content of the enacted legal rule. It is identical to the obligation that the institution communicated the intention to create.

57(T2) is true to the extent that legal institutions may lack the authority they claim to have.

58(T3) is true insofar as it is possible for the obligations created by legal institutions by virtue of their authority to be defeated by non-excluded weightier reasons.

59To sum up, this conception is not vulnerable to the epistemic objection nor to the "inquiring motives” objection and, contrary to what Redondo suggests, it is perfectly compatible with legal positivism.

4.2 Again on the practical irrationality objection: The particularist challenge

60Finally, I do not believe that this conception is vulnerable to “the” practical irrationality objection either. In fact, the objections considered in Section 3.3 fail for analogous reasons when directed against the thesis that the law intends legal rules to be substantive reasons (rather than be merely treated as such). It remains, however, for us to consider the particularistic challenge according to which it is implausible for the law to claim that legal rules are (or should be treated as) invariably relevant substantive reasons simply because no reason is invariably relevant.

61This objection is plausible, but it is important not to exaggerate its scope. In this sense, one could simply accept the objection and modify the corresponding theses so as to affirm that what the law claims is that legal rules are (or should be treated as) substantive reasons of a characteristic type, without claiming that they are invariably so (or that they should be invariably so treated).  

62Redondo might object that a rule that is not an invariably relevant reason is not a genuine rule at all. But there is no reason to restrict the notion of genuine rules in this way. In fact, Redondo poses a false dilemma (FD):

(FD) Either rules are invariably relevant reasons or they are merely useful devices that summarize what ought to be done normally or in ordinary situations but lack any independent weight.

63This, however, is a false dilemma. Rules could be independent reasons even if not in all those cases to which they apply. To illustrate this possibility, consider again the Razian account of the normativity of rules. No one doubts that according to Raz´s account, rules have independent normative weight. As I will show, however, for Raz rules are not invariably relevant reasons.

64In a nutshell, according to the Razian account, if by following rule R agent A will improve her conformity with certain reasons, then the fact that R requires A to Φ is a reason for A to Φ and not to refrain from Φing for those same reasons she will improve her conformity with.

65This is consistent with the rule that helps A to improve her conformity with reasons not being invariably relevant for at least two reasons. First, circumstances may change so that it is no longer true that by following the rule A will improve her conformity with reasons. In that case, the rule ceases to be a protected reason to act as it requires.

  • 11 Raz 1986: 62.

66Perhaps what Redondo means is that, although a rule may cease to be a reason as “general” circumstances change, a rule that is normally a reason to act as it requires cannot fail to be a reason in a particular case in virtue of the properties of that particular case. But this is not true either. As Raz argues, it is consistent with his conception to claim that if, in a particular case, the rule requires you to perform an action that is manifestly incorrect to (i.e., one that it is manifest that, on the balance of first-order reasons, you ought not to do), then it does not constitute a reason to so act.11

67Therefore, we must reject the thesis that genuine rules are invariably relevant reasons. And, consequently, I take it that there is no reason to insist that genuine rules must be logically non-defeasible either.      

5 Legal rules as formal reasons

68Let us now consider Redondo’s positive proposal. The basic idea is that the law intends legal rules to be regarded as logically non-defeasible and for them to be offered as formal reasons (i.e., as premises in an argument) within the framework of a justificatory discourse in all cases to which they apply (and, where appropriate, for reasons to be given when the case is decided against the rule). This conception has at least three problems.

69First, according to this conception, it seems that the law seeks to guide only the conduct of legal officials and, particularly, of judges. It would be absurd to believe that the law requires that we articulate and verbally express arguments every time a legal rule applies to us. There is a legal rule that prohibits killing others. The law cannot pretend that I discursively articulate an argument every time that rule applies to me (almost all the time!). Therefore, for Redondo's proposal to be plausible, it must be interpreted as holding that what the law intends is for judges to deductively infer all the normative consequences of those rules whose antecedents are satisfied in the case submitted for their consideration. The idea that law claims only to guide the behaviour of judges is, however, implausible. As HLA Hart observed long ago (1961/2012: 40):

The principal functions of law as a means of social control are not to be seen in private litigations or prosecutions, which represent vital but still ancillary provisions for the failure of the system. It is to be seen in the diverse ways in which the law is used to control, to guide and to plan life out of court.

70Second, legal rules can play the role of formal reasons only insofar as they are regarded as substantive reasons. Let us suppose that a legal authority enacts a legal rule according to which whoever buys an ice cream has the obligation to pay $10 in taxes. John buys an ice-cream. It follows, it seems, that John now has a legal obligation to pay $10 in taxes. But what exactly is the argument supposed to be? Consider (A):

A1. The authority issued a legal rule according to which whoever buys an ice cream has the obligation to pay $10 in taxes.

A2. John bought an ice cream.

A3. John has the obligation to pay $10 in taxes.

71This argument is obviously invalid. In particular, (A3) does not follow from (A1) and (A2) by modus ponens. How could legal rules operate as formal reasons then? We would want something like the following (B):

B1. The authority issued a legal rule according to which whoever buys an ice cream has the obligation to pay $ 10 tax (i.e., the authority communicated the intention to impose an obligation to pay $10 in taxes to those who buy ice cream).

B2. Given (B1), those who buy ice cream actually do have an obligation to pay $10 in taxes.

B3. John bought an ice cream.

B4. John has the obligation to pay $10 in taxes.

72This argument is valid. But, what are statements (B2) and (B4) about? Clearly, they are not about what the rules enacted by the authority require. Thus, for example, (B4) is not equivalent to “The authority issued a rule requiring John to pay $10 in taxes”. Among other things, that would not follow from (B1) - (B3). The authority issued a rule that requires those who buy ice cream to pay $10 in taxes, but it did not issue a rule requiring John to pay $10 in taxes. The most plausible alternative is that such statements refer to what the rule’s addressees (and John in particular) are “genuinely” obliged to do, that is, to what they have substantive reasons of a distinct kind to do.

73Finally, the law normally intends to not only guide our conduct but to also make us accountable to one another for conforming to legal rules. Thus, in issuing a legal rule that establishes the obligation to Φ, legal institutions communicate the intention to make it appropriate to demand of the rule’s addresses that they Φ and to blame them if they fail to do so without justification or excuse. A plausible hypothesis is that both claims are related. The law intends to give us reasons of a distinct type to Φ, that is, precisely, reasons that make it appropriate to demand of us that we Φ, and to blame those of us who fail to do so without justification or excuse. But if the sense in which the law intends legal rules to be reasons were merely formal and linguistic, then clearly such "reasons" could not make it appropriate to demand that we conform to legal rules or to blame us if we do not. Only substantive reasons, it seems, can do the required normative work. Thus, it turns out that even if Redondo's thesis adequately explains the law’s claim to guide our conduct, it would have serious difficulties in explaining law’s (equally important) claim to make us accountable in the relevant sense.

6 Conclusion

74Redondo argues that the sense in which the law claims that legal rules are reasons is a purely linguistic-formal one. The law does not claim that legal rules count in favour of acting as they require, nor does it intend that people treat them as so counting. It merely intends that legal rules be used as premises within formal arguments, regardless of their impact on what people should do. Here I have argued that we should reject this suggestion. On the one hand, the epistemic objection (Section 3.1), the “inquiring motives” objection (Section 3.2) and the practical irrationality objection (Section 3.3 and 4.2) are not decisive arguments against the thesis that the law claims that legal rules are (or intends that they be are treated as) substantive reasons. On the other hand, this thesis is perfectly compatible with legal positivism (Section 4.1). Finally, Redondo’s own alternative account of the normativity of law has three serious shortcomings. First, it is implausible to claim that the law intends that the legal rules be used as formal reasons by ordinary citizens. Thus, Redondo must conclude that the law intends to guide only the conduct of judges and officials, which, as Hart argues, constitutes a narrow and impoverished account of law and its aspirations. Second, legal rules can only be formal reasons to the extent that they are taken to be substantive reasons. Finally, third, law’s claim that legal rules are reasons only in a formal sense cannot adequately explain the law’s related claim according to which we are accountable to each other for acting as the law requires.

—Acknowledgements.— I presented an earlier version of this paper at a Workshop on Cristina Redondo’s Positivismo jurídico “interno” at the Faculty of Law of the University of Buenos Aires, organized by Paula Gaido and where Cristina herself participated as a respondent to various commentaries (including mine). I am grateful to Cristina for taking the time to discuss some of my worries about her ideas, and to Paula for having given me the opportunity to participate in the workshop with the generosity that distinguishes her. I also thank the two anonymous referees for their valuable comments.

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Dancy, J. (2004). Ethics Without Principles.  Oxford University Press. 

Darwall , S. (2009). The Second-Person Standpoint: Morality, Respect and Accountability.  Harvard University Press.

Darwall, S. (2010). Authority and Reasons: Exclusionary and Second-Personal. Ethics, 120, 257-278.

Hart, HLA (2012). The Concept of Law (3rd ed.). Oxford University Press. (Original work published 1961).

Monti, E. (2018). On Darwall’s Case Against the Normal Justification Thesis. Ethics, 128, 432-445.

Raz, J. (1986). The Morality of Freedom. Oxford University Press.

Raz, J. (2001). Reasoning with Rules. Current Legal Problems, 54, 1-18.

Redondo, C. (2018). Positivismo jurídico “interno”.  Klub Revus.

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1 Redondo 2018: chap. 2.

2 Let us suppose that a corrupt king accepts a bribe in exchange for enacting a rule requiring his subjects to attend Church on Sundays. He is not in the least interested in guiding their conduct: he is not interested in them going to Church or in giving them a reason to do so. His intention is simply to cash his check. However, he does that for which he was paid, that is, he enacts a rule requiring his subjects to go to Church on Sundays. My suggestion is that in issuing that rule, the king is communicating his intention of giving his subjects a reason to go to Church by that very act of communication. But that, of course, does not imply that he actually has the intention he communicated that he has. One can communicate intentions that one lacks.

3 Not all legal rules are enacted by agents (e.g., customary law). To generalize the point made in the text, we should say something along the following lines: the claim that “the law claims to guide people’s conduct by rules” means that legal rules are either enacted by legal institutions with the (communicated) intention of guiding people’s actions or, if not enacted by anyone, they are at least treated by legal institutions as guiding action in precisely the same sense in which someone enacting them would have communicated the intention that they do. This generalization requires several clarifications, but the required clarifications do not affect the arguments that follow.

4 This expression is Redondo’s. More on it will appear later.

5 Someone could argue that my reply to Redondo’s epistemic objection is superficial or incomplete at best. After all, I say very little regarding the kind of evidence that would allow us to distinguish between conformity motivated by the rule and conformity motivated by other reasons; and between the non-conformity of someone who takes the rule to be a reason that was defeated by weightier reasons and the non-conformity that does not consider the rule to be a reason at all. But it is not my intention to provide a full account of what constitutes good evidence to conclude that someone regards a rule as a reason. My point is simply that there is no reason to believe that it is not possible for there to be evidence of the required kind. Thus, my intention is to shift the burden of proof here. We normally assume that we can know the reasons that motivate people to act as they do. Redondo, I take it, does not deny as much. But then she has the burden of showing what is so special about rules as a kind of reason for action such that we are unable to know whether people act motivated by rules or not. The fact that one can conform to a rule without being motivated by it, and the fact that rules could be regarded as defeasible (pro tanto) reasons do not distinguish rules from other kinds of reasons. For example, it is possible for you to know that I killed my father in order to inherit his money even if I could have acted in conformity with that reason motivated by other considerations - say, that I hate him- and even if I take that reason to be substantively defeasible -say, I take it that inheriting my father’s money would not justify betraying my best friend. Thus, Redondo has not yet done anything to satisfy the burden of proof.

6 See Raz 2001.

7 Redondo 2018: 120.

8 Darwall 2009: 16.

9 For my own answer to this objection, see Monti 2018.

10 See Dancy 2004.

11 Raz 1986: 62.

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Electronic reference

Ezequiel Monti, “Redondo on the normativity of law”Revus [Online], 48 | 2022, Online since 08 June 2022, connection on 09 December 2023. URL:; DOI:

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About the author

Ezequiel Monti

Assistant Professor, Universidad Torcuato Di Tella (Argentina).

Address: Av. Pres. Figueroa Alcorta 7350 - C1428BIJ - Buenos Aires – Argentina

E-mail: emonti [at]

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