Legal normativity reconsidered: Raz, positivism, and political authorit

Legal philosophers have advanced myriad accounts of legal normativity. These accounts are of two main types, derivative and non-derivative. In derivative accounts, legal normativity is constituted by other types of normativity (e.g., morality, prudence). In non-derivative accounts, legal reasons are a free-standing type of reason for action. Where their opponents and Austinian precursors advance straightforward, derivative accounts of legal normativity, modern legal positivists like H. L. A. Hart reject these in favor of a non-derivative account. For Hart, legal normativity is akin to the normativity of the rules of a game. As chess rules give chess reasons for action, so do legal rules give legal reasons for action---i.e., reasons for action that are understood from the standpoint of those that accept the rule-governed practice.;After developing adequacy criteria in accounts of legal normativity, I employ David Copp's type-one/type-two normativity distinction and Joseph Raz's account of justified political authority to argue that Hart's account of legal normativity fails of generality. I argue (1) that legal systems have a normative dimension independent of their constituent norms; (2) that this normative dimension is characterized by giving or asserting the existence of non-legal (type-two normative) reasons for adopting the legal point of view---what Joseph Raz calls making the claim to normative supremacy; (3) that legal systems (as distinct from their constituent norms) are constituent (normative) elements of what might be called a legal order ; therefore, (4) there exists an element of all legal systems that gives or asserts the existence of non-legal (type-two normative) reasons for action---that commends the legal point of view; and therefore, (5) the non-derivative, type-one normative account of legal normativity advanced by Hart is inadequate because it does not describe all of the normative elements of a legal order.;The surviving account of legal normativity is both compatible with legal positivism and deflationary: it implies that there is no essential type of normativity that all law possesses. Rather, legal normativity is contextual and without a uniform core. This account is compatible with Raz's account of justified political authority.