Author:
Mátyás BódigUniversity of Aberdeen School of Law, Elphinstone Road Aberdeen AB24 3UF UK

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The article is the second part of an analysis that seeks to clarify the distinctive normativity of law, as it is reflected in the legal systems of constitutional democracies. It explores the ability of interpretive theories to capture the conceptual characteristics of the normativity of law. The article argues that it is its institutional character that makes the normativity of law distinctive. The normativity of law must be construed as a form of institutional normativity. The analysis of the institutional character of legal norms revolves around the idea of obligations. It implies that the distinctive normativity of law builds on normative guidance by authoritative institutions. The ability of the law to provide normative guidance is explained in terms of three types of reasons: moral reasons, compliance reasons and response reasons. An implication of this insight is that moral legitimacy is constitutive of the normativity of law. The article concludes with an exploration of the dimensions of moral legitimacy in law, and the way the interplay of the justificatory background to normative claims and the institutional features of law make false normativity in law possible.

  • See Bódig, M.: The Issue of Normativity and the Methodological Implications of Interpretivism I: The Idea of Normative Guidance. Acta Juridica Hungarica, 54 (2013) 2, 119–139.

    Bódig M. , 'The Issue of Normativity and the Methodological Implications of Interpretivism I: The Idea of Normative Guidance ' (2013 ) 54 Acta Juridica Hungarica : 119 -139 .

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  • See Equality Act 2010, ss. 13(1) and 39.

  • See Equality Act 2010, ss. 113-126.

  • The choice of terminology is not accidental here. The concept of ‘obligation’ (as opposed to ‘duty’) captures the relational aspect of normative ties: obligations are specifi c normative relations between parties. Cf. MacCormick, N.: Institutions of Law. Oxford, 2008, 109–115. It fits the way I have conceptualised direct normativity in Part I (subsection 2.3).

    MacCormick N. , '', in Institutions of Law , (2008 ) -.

  • This may be an implication of the view (held by some legal theorists) that only morality can obligate. See e.g. Hurd, H. M.: Interpreting Authorities. In: Marmor, A. (ed.): Law and Interpretation: Essays in Legal Philosophy. Oxford, 1995, 425.

    Hurd H. M. , '', in Law and Interpretation: Essays in Legal Philosophy , (1995 ) -.

  • See Bódig, M.: Jogelmélet és gyakorlati fi lozófia. Miskolc, 2004, chapters 7 and 35.

  • This obviously invites questions on how my analysis is related to the concept of ‘authoritative reasons.’ For the two classical accounts of the concept, see Raz, J.: Practical Reason and Norms. 2nd ed., Princeton, N. J., 1990, 58–59; Hart, H. L. A.: Essays on Bentham. Oxford, 1982, 253–255. But I will not address that issue here. It is mainly because the compatibility of my account with the Razian idea of ‘exclusionary reasons’ (see Practical Reason and Norms pp. 40–45) would require a detailed analysis that I cannot provide here. I hope that I can make sense of the idea of institutionalised authority within the terminological framework I have at my disposal.

    Raz J. , '', in Practical Reason and Norms , (1990 ) -.

  • Cf. Raz, J.: Between Authority and Interpretation. Oxford, 2009, 143.

    Raz J. , '', in Between Authority and Interpretation , (2009 ) -.

  • An example could be the regulation of abortion. In many countries, professional rules require gynaecologists to perform abortions during their training, which is, of course, forbidden by the Catholic Church. For a Catholic gynaecologist, this can generate a clash of normative claims with very uncomfortable implications.

  • Cf. Finnis, J.: Natural Law and Natural Rights. Oxford, 1982, 148. Llewellyn, K. N.: The Normative, the Legal, and the Law-Jobs: The Problem of Juristic Method. Yale Law Journal, 49 (1940), 1355–1400, 1367. In a similar context, Neil Walker characterises the authority claims of law as ‘magisterial’. See his ‘Out of Place and Out of Time: Law’s Fading Coordinates.’ Edinburgh Law Review, 14 (2010), 13–46, 31–32.

    Finnis J. , '', in Natural Law and Natural Rights , (1982 ) -.

  • The fact that this is an interpretive claim has special significance here. The claim to ‘primacy’ I talk about may reflect the way ideas of sovereignty took shape after the destructive religious conflicts of early modernity in Europe. Neil Walker argues that domestic law is losing its ‘magisterial’ character under the conditions of globalisation. See ibid. 44.

  • UK equality legislation provides instructive examples for this. It regulates a whole series of exemptions from obligations under the Act, and most of them are designed to accommodate the normative claims of other authoritative entities-like churches (see e.g. Equality Act 2010 s. 29). But the point is that such exemptions must be provided for explicitly. Without it, the law trumps other normative claims. This aspect of the normativity of law was brought into sharp focus recently by the ‘Jewish Free School’ case in the UK. See Regina (E) v Governing Body of JFS [2010] 2 A.C. 728. The UK Supreme Court ruled in the case that a boy who was not admitted to the pertinent school suffered ethnic discrimination (under Race Relations Act 1976). The Law Lords themselves were somewhat reluctant to trump the religious authority in this case but the relevant law very simply did not leave them a choice. See e.g. Baroness Hale’s complaints (at §§ 69–70) about the rigidity of the law when it comes to allowing for justified departures.

  • Cf. Fuller, L. L.: The Forms and Limits of Adjudication. Harvard Law Review, 92 (1978), 353–409, 369.

    Fuller L. L. , 'The Forms and Limits of Adjudication ' (1978 ) 92 Harvard Law Review : 353 -409 .

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  • Admittedly, these considerations refer back to Hart’s analysis about the deficiencies of normative guidance through ‘primary rules’ only. See Hart, H. L. A.: The Concept of Law. 2nd ed., Oxford, 1994, 92–94. But I believe those considerations are contextualised better if they are related to the issue of institutionalising normativity.

    Hart H. L. A. , '', in The Concept of Law , (1994 ) -.

  • I believe that this is the analytically most important manifestation of the authority of law.

  • If a normative claim is successful, there must be agents (by definition) who accept the justifying force of the underlying reasons, and there must be agents who find it important not to subvert the expectations manifested in them. These people are very much likely to comply.

  • This attraction may be strong for those who believe that one of the primary functions of law is to provide solutions to coordination problems. See e.g. Postema, G. J.: Coordination and Convention at the Foundations of Law. Journal of Legal Studies, 11 (1982), 165–203. Finnis, J.: Law as Coordination. Ratio Juris, 2 (1989), 97-104.

    Postema G. J. , 'Coordination and Convention at the Foundations of Law ' (1982 ) 11 Journal of Legal Studies : 165 -203 .

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  • See Bódig: Jogelmélet és gyakorlati filozófia. op. cit. ch. 37.

  • That is why it is typical that legislative pronouncements come with a standard formula pointing to the authority manifested in the fact of enactment. In Equality Act 2010 (just like in any other UK statute), the formula is the following: ‘Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows...’ (Italics are mine.)

  • See e.g. Hart: Essays on Bentham. op. cit. 145–161.

  • I note that this view presupposes the rejection of the legal positivist idea of ’social normativity.’ See e.g. Hart: The Concept of Law. op. cit. 254–259. See also Coleman, J.: The Practice of Principle. Oxford, 2001, 69–71. Advocates of this strategy deny that moral reasons have a necessary place in the explanation of legal normativity. For my take on the issue, see my Jogelmélet és gyakorlati filozófia. op. cit. ch. 4.

  • Of course, on the basis of the limited analysis I have provided, it is impossible to clarify what would count as an adequate moral justification necessary to constitute a legal obligation. In fact, I do not think that there is a general answer to this question. It may be that, in most cases, what is required is no more than what Kenneth Himma has suggested: the law must be ‘the type of thing that is minimally respectable from a moral point of view’ to be able to give rise to obligations. See Himma, K. E.: The Ties that Bind: An Analysis of the Concept of Obligation. p. 32. Available at SSRN ( http://ssrn.com/abstract=924106 )

  • For the concept of ‘auxiliary reasons’, see Raz, J.: op. cit. 34–35.

    Raz J. , '', in Practical Reason and Norms , (1990 ) -.

  • As the reasons which provide the background justification for the expectations must be reasons for the addressees to constitute normative guidance, I believe that Raz’s ’service conception of authority’ is fundamentally plausible. See e.g. Raz, J.: Ethics in the Public Domain. Oxford, 1994, 214.

    Raz J. , '', in Ethics in the Public Domain , (1994 ) -.

  • Cf. MacCormick, N.: op. cit. 245. For a more substantial analysis, see Waldron, J.: Law and Disagreement. Oxford, 1999.

    MacCormick N. , '', in Institutions of Law , (2008 ) -.

  • One can claim that false normativity has infected the ‘Jewish Free School’ case that I have mentioned above. See supra note 11.

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