New Essays on the Normativity of Law PDF
Preview New Essays on the Normativity of Law
New essays oN the Normativity of Law an important part of the legal domain has to do with rule-governed conduct, and is expressed by the use of notions such as norm, obligation, duty and right. these require us to acknowledge the normative dimension of law. Normativity is, accordingly, to be regarded as a central feature of law lying at the heart of any comprehensive legal-theoretical project. the essays collected in this book are meant to further our understanding of the normativity of law. more specifically, the book stages a thorough discussion of legal normativity as approached from three strands of legal thought that are particularly influential and which play a key role in shaping debates on the normative dimension of law: the theory of planning agency, legal conventionalism and the constitutivist approach. while the essays presented here do not aspire to give an exhaustive picture of these debates – an aspiration that would be, by its very nature, unrealistic – they do provide the reader with some authoritative statements of some widely discussed families of views of legal normativity. in pursuing this objective, these essays also encourage a dialogue between different traditions of study of legal normativity, stimulating those who would not otherwise look outside their tradition of thought to engage with new ideas and, ultimately, to arrive at a more comprehensive account of the normativity of law. Volume 3 in the series Law and Practical Reason Law and Practical Reason the intention of this series is that it should encompass monographs and collec- tions of essays that address the fundamental issues in legal philosophy. the foci are conceptual and normative in character, not empirical. studies addressing the idea of law as a species of practical reason are especially welcome. recognising that there is no occasion sharply to distinguish analytic and systematic work in the field from historico-critical research, the editors also welcome studies in the history of legal philosophy. Contributions to the series, inevitably crossing dis- ciplinary lines, will be of interest to students and professionals in moral, political, and legal philosophy. General editor Prof George Pavlakos (antwerp and Glasgow) advisory Board Prof robert alexy (Kiel) Prof samantha Besson (fribourg, Ch) Prof emilios Christodoulidis (Glasgow) Prof sean Coyle (Birmingham) Prof mattias Kumm (New york and Berlin) Prof stanley Paulson (st Louis and Kiel) Prof Joseph raz (Columbia Law school) Prof arthur ripstein (toronto) Prof scott shapiro (yale Law school) Prof victor tadros (warwick) editorial assistant triantafyllos Gouvas (antwerp) Volume 1: the Normative Claim of Law Stefano Bertea Volume 2: Community and Collective rights: a theoretical framework for rights held by Groups Dwight Newman Volume 3: New essays on the Normativity of Law Edited by Stefano Bertea and George Pavlakos New essays on the Normativity of Law edited by stefano Bertea and George Pavlakos oXforD aND PortLaND, oreGoN 2011 Published in the United Kingdom by hart Publishing Ltd 16C worcester Place, oxford, oX1 2Jw telephone: +44 (0)1865 517530 fax: +44 (0)1865 510710 e-mail: [email protected] website: http://www.hartpub.co.uk Published in North america (Us and Canada) by hart Publishing c/o international specialized Book services 920 Ne 58th avenue, suite 300 Portland, or 97213-3786 Usa tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 fax: +1 503 280 8832 e-mail: [email protected] website: http://www.isbs.com © the editors and contributors 2011 the editors and contributors have asserted their right under the Copyright, Designs and Patents act 1988, to be identified as the authors of this work. all rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. enquiries concerning reproduction which may not be covered by the above should be addressed to hart Publishing Ltd at the address above. British Library Cataloguing in Publication Data Data available isBN: 978-1-84946-238-9 typeset by hope services Ltd, abingdon Printed and bound in Great Britain by tJ international Ltd, Padstow, Cornwall Contents List of contributors vii introduction 1 Stefano Bertea and George Pavlakos Part i Law, Normativity aND PLaNs 15 1 Planning agency and the Law 17 Scott Shapiro 2 reflections on Law, Normativity and Plans 73 Michael E Bratman 3 the moral Puzzle of Legal authority 86 Veronica Rodriguez-Blanco 4 Legal Normativity and the instrumental Principle 107 Katrien Schaubroeck Part ii: Law, Normativity aND CoNveNtioNs 141 5 the Conventional foundations of Law 143 Andrei Marmor 6 multilayered Legal Conventionalism and the Normativity of Law 158 Marco Goldoni 7 the Normativity of the Practice of officials 177 Dimitrios Kyritsis Part iii Law, Normativity aND aUtoNomy 197 8 Law and obligation: outlines of a Kantian argument 199 Stefano Bertea 9 Normativity, metaphysics and Decision 219 Robert Alexy 10 Law, Normativity and Legitimacy: Can moral Constructivism be fruitful for Legal theory? 229 Cristina Lafont 11 Law, Normativity and the model of Norms 246 George Pavlakos vi Contents 12 on Constitutive Normativity 281 Corrado Roversi 13 tracing a Genealogy of Legal Normativity: responsibility, authorship and Contingency 310 Sylvie Delacroix Index 321 Contributors Robert Alexy is Professor of Public Law and Legal Philosophy at the Christian albrecht University, Kiel, Germany. from 1994–1998 he was President of the German section of the international association for Philosophy of Law and social Philosophy. he is known and admired worldwide as a leading legal phil- osopher. Stefano Bertea is a reader in Law at the school of Law of the University of Leicester. he has published widely in the fields of legal philosophy, jurisprudence, political theory and the theory of legal reasoning. Michael E Bratman is Durfee Professor in the school of humanities and sciences and Professor of Philosophy at the stanford University. he is an internationally-respected philosopher of action. his work is credited with further- ing our understanding of moral responsibility, temptation and self-control, shared intention and shared cooperative activity. his research interests also include the nature of agency, practical reason and free will. Sylvie Delacroix is a Lecturer in Law at UCL and Director of the Law and ethics Centre. in the past she was a lecturer at Kent University, having previously held a one-year post-doctoral fellowship at trinity College, Cambridge (senior rouse Ball, 2002–2003). she holds a PhD from Cambridge University, Licenses in Law from the University of Louvain-la-Neuve (Belgium), and Candidatures in Philosophy from the facultés Universitaires saint Louis (Belgium). from 2004– 2005 she was the evelyn Green Davis fellow at the radcliffe institute for advanced study (harvard University). Marco Goldoni is a fellow at the Centre for Law and Cosmopolitan values at the University of antwerp. he has a degree in law and a degree in philosophy from the University of Bologna. his present research is on european constitution- alism and in particular on the role of national parliaments seen through a repub- lican perspective. the thesis aims to build a republican model for the principle of political accountability. this model will serve as a compass for proposing specific institutional arrangements. Dimitrios Kyritsis is a Lecturer in Law at the sheffield Law school. he under- takes research in jurisprudence, constitutional theory and political philosophy. he is also a member of the sheffield institute of Biotechnological Law and ethics research Cluster. viii Contributors Cristina Lafont is Professor at the Philosophy Department of Northwestern University. she holds a PhD and a habilitation from the University of frankfurt. she specialises in German philosophy, particularly hermeneutics and critical the- ory. she has also published in philosophy of language and contemporary moral and political philosophy. she is author of The Linguistic Turn in Hermeneutic Philosophy (Cambridge, ma, mit Press, 1999) and Heidegger, Language, and World-disclosure (Cambridge, Cambridge University Press, 2000). Andrei Marmor earned his Ba and ma in philosophy, as well as his LLB, from tel aviv University and earned his DPhil from oxford University. he was a pro- fessor at tel aviv University, israel, and taught as a visiting professor at several universities before joining the UsC Law and Philosophy faculties in 2002. he concentrates his study on legal and moral philosophy. he is the director of the UsC Center for Law and Philosophy, and editor in chief of the Journal of Ethics and Social Philosophy, an online peer-reviewed journal in moral, political and legal philosophy. George Pavlakos is research Professor in globalisation and legal theory at the University of antwerp and director of the Centre of Law and Cosmopolitan values at the same institution. he is also sometime Professor in globalisation and legal theory at the University of Glasgow. his published work, mainly in the area of legal theory and legal philosophy, includes several edited collections and a monograph, entitled Our Knowledge of the Law, all published by hart Publishing, as well as another monograph in German, Rechtsontologie und praktische Vernunft, pub- lished by Nomos verlag. Veronica Rodriguez-Blanco obtained her first degrees in law and philosophy from the Catholic University in Caracas, venezuela and the Central University of venezuela (magister scientiarium in Logic and Philosophy of science). she pro- ceeded to study english Law at Balliol College, oxford (mJur) and Legal Philosophy at Corpus Christi College, Cambridge (PhD). in 2001, she joined Birmingham Law school. her present research aims to advance a better under- standing of the relationship between legal and moral objectivity. she is also inter- ested in, and has written on, the methodological problems in legal theory such as the distinction between normative and descriptive jurisprudence. Corrado Roversi is a Lecturer in Law at the University of Bologna. his research interests include the study of social and legal ontology, legal epistemology, the theory of argumentation and the philosophy of normative language. Currently, he is focusing on the concept of constitutive rules and on the general phenomenon of normatively constituted concepts. Katrien Schaubroeck is a post-doctoral fellow at the faculty of philosophy of the University of Leuven. she has published in the fields of practical philosophy including meta-ethics, normative ethics, theory of action and moral psychology. Contributors ix Scott Shapiro is Professor of Law and Philosophy at yale Law school. Before his appointment at yale, he was Professor of Law and Professor of Philosophy at the University of michigan. his areas of interest include jurisprudence, family law, constitutional law, criminal law, constitutional theory, philosophy of action and authority and rationality. he is the editor (with Jules Coleman) of The Oxford Handbook of Jurisprudence and Philosophy of Law.
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