Legal Norms and Normativity: An Essay in Genealogy: 9 (Legal Theory Today) - Hardcover

Sylvie Delacroix

Hardcover

ISBN 10: 1841134554 ISBN 13: 9781841134550

Publisher: Hart Publishing, 2006

Synopsis

This book offers a "genealogical" explanation of law's normativity. The term "genealogical" conveys a commitment to a non-metaphysical type of enquiry. While it explains how law, as a normative phenomenon, comes about, it does not seek to ground law's normativity in anything but the context of social interaction giving rise to it. Legal normativity is brought about on a daily basis. Whether in revolutionary circumstances or in the quotidian need for judges, lawmakers, or citizens to balance law's demands with those of morality or prudence, our ability to bind ourselves through law ultimately depends on our capacity to articulate a better way of living together, and to commit ourselves to it. These efforts of assessment and articulation depend, in turn, on our conception of normative agency. Assert the need to trace the truth of ethical judgments to some independent moral "facts" conditioning their objectivity, and you will get a different understanding of what it is we are doing when we dispute law's authority in the name of moral values. Tracing the truth of moral judgments back to our own social practices not only affects the nature of disagreement, it also dramatically increases our responsibility when, as lawmakers, judges, or citizens, we take the law into our own hands and confront it with our moral expectations.

About this title

Review:

...an engaging and lively read. Delacroix's discussion of the work of Montaigne, Kelsen, and Hart is clear and illuminating, as is her critique of those philosophers who try to defend a non-historical account of normativity...Most importantly, I believe the methodological approach she recommends deserves serious attention from anyone interested in jurisprudence and as an enterprise aimed at understanding the social practice we call 'law'. Danny Priel Legal Studies Vol. 27, No. 4 (2007)

Synopsis:

The idea of a "legal norm" is traditionally associated with two characteristic features. On the one hand, legal norms purport to bind us, and they must be minimally successful in that endeavour if they are to exist as a "legal system". On the other hand, legal systems are social artifacts, and the legal norms composing them are made by men and women, according to the accidents of history. For most medieval philosophers the natural law model explained the apparent arbitrariness of law-making practices as being driven by a higher order of necessity (be it God's or Nature's) reflected in Natural Laws. Then, in the 16th Century, Montaigne questioned the natural law model by asking how law can have the authority it claims to have, and bind us, if it emerges from social practices whose sole necessity is to address the contingent needs and desires of a certain group of people, more or less representative of the rest of the population? This book offers a "genealogical" explanation of law's normativity. The term "genealogical" conveys a commitment to a non-metaphysical type of enquiry.

While it seeks to explain how law, as a normative phenomenon, came about, it does not wish to ground law's normativity in anything but the context of social interaction giving rise to it. This "genealogical endeavour" differs from a reductive, or morally nihilistic enterprise (following Nietzsche) in that it builds on recent developments in ethical theory, attempting to make sense of the social contingency of moral values.

About this edition

• Publisher: Hart Publishing
• Publication date: 2006
• ISBN 10: 1841134554
• ISBN 13: 9781841134550
• Binding: Hardcover
• Edition number: 1
• Number of pages: 242