The essay seeks to make contributions to the clarification of the conceptual relation between law and politics. It characterizes law as an institutionalized and normative social practice that makes authority claims on its participants. On this basis, legal institutions are defined as institutions that systematically seek to influence human conduct by providing authoritatively binding practical reasons. The essay claims that the elucidation of the conceptual features of legal institutions touches upon a series of issues of justification that belong to the realm of political philosophy. This makes concepts like political institution and political obligation relevant for conceptual legal theory. After an analysis of the concept of political institution, the essay claims that the concept of legal institution and the concept of political institution have the same applications. This conclusion is used in support of the main thesis of essay: legal institutions are to be treated as political institutions in conceptual legal theory. The essay also examines whether the conceptual framework outlined here can be compatible with a viable notion of political communities. The essay makes an attempt to clarify the relevance of the main thesis in respect to legal reasoning; it insists that the position taken here is unlikely to lead to some radical reorientation of legal reasoning.
The essay reflects upon the debate over intentionalism about statutory interpretation, and argues for a moderate version of intentionalism. It argues that the debate over intentionalism cannot be sorted out without establishing a viable conception of legislative authority. The outlines of such a conception are put forward by throwing some light on the concept of “representational authority”. The essay also argues that the problem of legal interpretation touches upon issues of sovereignty. It implies that some important issues of the normative theory of legal interpretation are linked to substantive political philosophical problems.
The article is the first 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 normative guidance the law provides is characterised in terms of normative claims. Normative claims are construed as being based upon linking up expectations with practical reasons. The analysis lays out the conditions of providing normative guidance with the help of drawing a distinction between the success and efficacy of normative claims. The success of normative claims is explained in terms of their substantive justificatory background and the competence of those making them. The characterisation of the efficacy of normative claims is based on the distinction between instrumental and non-instrumental reasons.
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.