On The Concept And Source Of Legal Normativity

Generally speaking,law is a normative social practice.The concept and source of legal normativity are two different questions.The former answers what is the normativity of the law,while the latter explains why the law has the normativity and how the law becomes possible as a normative practice.Related researchers mainly elucidate their views based on the standpoint of reasons,and explain the legitimacy or defensibility of the normativity with "reason".The legal normativity problem refers to whether the law provides independent action reasons and what kind of reasons it provides.The characteristics of legal normativity can be explained by the nature of legal reasons.Most natural lawyers believe that law does not have an independent normativity,and legal normativity is equivalent to moral normativity.However,legal reasons are not all moral reasons,which have their own unique nature.In the legal positivism camp,Austin did not pay enough attention to the normative aspect of law;Kelsen and Hart noticed the deficiency of Austen’s theory and explained legal normativity.Although their methods were not the same,they both adopted the method based on validity to explain the legal normativity.Coleman and Marmor have criticized and supplemented Hart’s legal normativity theory.Raz believes that the interpretation based on belief is a more appropriate method than the interpretation based on validity,and believes that the study of legal norms should not be confined to the philosophy of law,but should be placed in the general background of practical philosophy.However,their arguments have some problems and therefore do not provide a complete explanation of the legal normativty.The study of legal normativity is a subclass of meta-normativity study.Christine Korsgaard further developed Kantian ethics after criticizing the three theories about the sources of normativity in traditional philosophy.However,as a regulationist who believes that normativity is opposed to nature,Korsgaard cannot get rid of the influence of empirical facts,so her argument is flawed.The way out of the study of legal normativity lies in the modern practical philosophy’s reunderstanding of legal normativity.Inspired by the normative theories of Wittgenstein and Rouse,this paper holds that legal normativity is relative and dynamic,which originates from practice and is tested by practice.In addition to the introduction and conclusion,the main body of the article will be divided into five parts.The first chapter mainly analyzes the concepts of normativity and legal normativity,the main purpose is to elaborate the starting point of the discussion of legal normativity.On the concept of normativity,the most common view is to divide it into "social normativity" and "legitimate normativity",but this distinction is not reliable.In this paper,the normativity concept proposed by Stefano Bertea is adopted.According to this concept,the concept of legal normativity is composed of two elements: the guiding element and the defensible element,the latter is analyzed by reason.Legalists’ views on legal norms can be divided into three categories: they think that law is not normative,that the normativity of law is the normativity of morality,and that law has an independent normativity different from morality.Chapter two discusses Kelsen’s legal normativity theory.There are two ways to analyze Kelsen’s legal normativity theory in academia.One is that Kelsen adopts the concept of "justified normativity ",represented by Raz;the other is that if the a priori argumentation of basic norms is valid,law is an effective normative system and law is normative.This paper argues that both approaches fail.Chapter three discusses how the theory of social rules proposed by Hart and developed by Coleman and Marmor explains legal normativity.Hart noted the normative aspect of the law,but did not fully explain it.Later scholars revised and developed Hart’s legal normativity theory,including Coleman’s coordinated habitus and "shared cooperative action" theory,Marmor’s constitutive habitus and Zhuang Shitong’s "value of judicial obligation" based on Hart’s text.Whatever the interpretation,however,appeals to the inherent value of law,which is generally considered to be conducive to social cooperation.However,this interpretation is itself problematic.In fact,this is also an appeal to the moral field to explain legal normativity.In fact,the "moral semantics of law" put forward by Coleman later explicitly regards legal reasons as a kind of moral reasons.The fourth chapter discusses Joseph Raz’s theory of legal norms.According to him,normativity is a general problem in the field of practical philosophy.His views on legal norms are closely related to his theory of reason,authority and value.In general,Raz argues that law must claim to have just authority,which can provide a content-independent and exclusive justification.Legitimate authority must satisfy certain moral conditions,so if the law can provide normative reasons,such legal reasons are also moral reasons.There are some problems in his theory,the main one is that Raz’s theory of authority fails to fully respond to the paradox of authority,and the lack of attention to democracy.The fifth chapter reflects the analysis of the characteristics of the legal normativity,that is,the reasons provided by the law.Although the legal reason is a kind of social reason,but it should be based on the individual reason,is a kind of institutional reason;Legal justification is content-dependent because practical authority does not create absolute obligations.Legal authority is best understood as a theoretical authority that provides a reason or an influential authority that makes a claim.Chapter six discusses the source of normativity.The combination of Korsgaard’s theory and Rouse’s theory can provide a relatively complete explanation.Finally,the conclusion summarizes the viewpoints of this paper and reviews the limitations of the research method of reason theory adopted in this paper.