Understanding normativity: the impact of culturally-loaded explanatory ambitions

While it may be wise in principle to avoid referring to a term used in such different ways by legal theorists, expunging the word ‘normativity’ from our vocabulary would leave a void in our jurisprudential landscape. It is not just a matter of intellectual history. When Hart declared that he and Kelsen shared a common goal — explaining the normative dimension of law —, he is sometimes taken to have given a solemn expression to something actually unremarkable: one of the features we need to be able to explain is law’s capacity to guide our conduct. Such a minimalist interpretation however does not even start to tackle the complexity and scope of the explanatory ambitions traditionally associated with the term ‘normativity’ in legal theory. Unlike Kelsen, Hart never had any ambition to explain what ‘enables’ or ‘conditions’ law’s normativity. Nor does Bix. Hart’s inscription within a philosophical context dominated by J.L. Austin’s theory of language predisposed him to developing what I have called elsewhere a ‘downstream account’ of legal normativity: its focus is to unveil how law’s normative dimension manifests itself (notably through the ‘critical reflective attitude’), rather than what enables it. That law is normative is a given, both for Hart and for Bix.

So far, so good: different accounts of legal normativity can and do proceed from different starting points, with different explanatory ambitions. The problems start when one dismisses the significance of these differences, or the possibility that fruitful insights may arise from a theory that explicitly questions one’s foundational premises. That there is an unbridgeable gap between is and ought is just one of those assumptions. This paper questions this assumption. It argues that legal theory has a lot to learn from various forms of non-reductive naturalism that will, among other things, help dislodge the idea that any account of the social practices that give rise to legal norms must presuppose intentional agency all the way through (as per conventionalist accounts).