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The Normativity of Law and Its Co-ordinative Function
Published online by Cambridge University Press: 12 February 2016
Extract
In his essay on Justice Holmes and the Nature of Law, Morris Raphael Cohen makes it clear that a fruitful science of law cannot be built if we restrict ourselves to the study of law as uniformities of behavior. He warns us against “doing away altogether with the normative point of view in law”. We regard legal rules as binding norms, says Cohen, and not just as mere descriptions of uniform behavior. Insisting on the normativity and bindingness of legal rules, Cohen anticipates contemporary legal philosophy, which takes this normativity and bindingness of law to be a pre-analytic datum to be accounted for by legal theory.
“The theory of law as coercive orders”, says H.L.A. Hart, “… started from the perfectly correct appreciation of the fact that where there is a law, there human conduct is made in some sense non-optional or obligatory…In building up a new account of law… we shall start from the same idea”. Ronald Dworkin starts his discussion of jurisprudence by asking: “Why do we call what ‘the law’ says a matter of ‘legal obligation’? Is ‘obligation’ a term of art, meaning only what the law says? Or does legal obligation have something to do with moral obligation?’
Accounts of the normativity of law resorting to morality, to sanctions and those viewing legal duty as a term of art, are amongst the commonest solutions to the problem under discussion.
- Type
- The Philosophy of Morris R. Cohen - A Symposium
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- Copyright
- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1981
References
1 Law and Social Order (Hampden, Conn., Archon Books, 1967), 204–205.
2 Hart, , The Concept of Law (Oxford, 1961), 79–80.Google Scholar
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5 See Finnis, , Natural Law and Natural Rights (Oxford, 1980)Google Scholar especially chap. 9.
6 This makes the situation they are in a co-ordination problem. Such situations have been investigated recently by Lewis and Ullmann-Margalit. See Lewis, , Convention (Harvard, 1969)Google Scholar and Ullmann-Margalit, , The Emergence of Norms (Oxford 1977).Google Scholar The latter defines them as follows: “Co-ordination problems are interaction situations distinguished by their situations of interdependent decision. That is, they are situations involving two or more persons, in which each has to choose one from among several alternative actions, and in which the outcome of any person's action depends upon the action chosen by each of the others. So that the best choice for each depends upon what he expects the others to do, knowing that each of the others is trying to guess what he is likely to do. (Ullmann-Margalit, at p. 78. See also Lewis, at p. 24).
7 The situation is thus not of a pure co-ordination problem. See Ullmann-Margalit, at p. 82.
8 On the phenomenon of threshold in contexts such as the one discussed here see Lyons, , Forms and Limits of Utilitarianism (Oxford, 1965)CrossRefGoogle Scholar, chap. 5
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11 This characterization of law is Kelsen's. See Kelsen, , Pure Theory of Law (1961)Google Scholar, chap. 10.
12 This is Hart's characterization. See Hart, , The Concept of Law (1961)Google Scholar, chap. 5.
13 For this notion see Raz, op. cit., supra n. 4 at 129–131.
14 For this point see Raz, at 150–152.
15 The force of salience in solving co-ordination problems is explained by Lewis, op. cit., supra n. 6 at 35–36.
16 Edna Ullmann-Margalit thinks that this claim is wrong. As an example refuting it she uses a co-ordination norm prescribing type of dress for social occasions. She says: “the co-ordination equilibria will in this case be the various states in which all are dressed alike and no one is embarrassed, and the co-ordination achieved in each of them seems to be an end in itself. It would require too long a stretch of imagination… were it to be maintained that there is some distinct co-operative goal promoted by this particular case of co-ordination.” (Ullmann-Margalit, op. cit. supra n. 6 at 133). That no such “long a stretch of imagination” is required becomes evident with the reading of the very passage quoted above from Ullmann-Margalit. The distinct goal promoted by the particular case of co-ordination norm she uses is, as she makes clear, that no one is embarrassed.
17 Hart, op. cit., supra n. 12.
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20 Hart, op. cit., at 193.
21 This possibility is nicely explained by Raz, , The Authority of Law (Oxford, 1979) 266–7Google Scholar, 274–5 and in Jeremy Waldron's “The Right to do the Wrong”, a paper to be published in Ethics.