Download Legal Norms and Normativity: An Essay in Genealogy (Legal by Sylvie Delacroix PDF

By Sylvie Delacroix

This e-book bargains a "genealogical" rationalization of law's normativity. The time period "genealogical" conveys a dedication to a non-metaphysical form of enquiry. whereas it explains how legislations, as a normative phenomenon, comes approximately, it doesn't search to flooring law's normativity in whatever however the context of social interplay giving upward thrust to it. felony normativity is led to every day. no matter if in progressive conditions or within the quotidian want for judges, lawmakers, or voters to stability law's calls for with these of morality or prudence, our skill to bind ourselves via legislations finally relies on our capability to articulate a greater lifestyle jointly, and to devote ourselves to it. those efforts of evaluate and articulation rely, in flip, on our notion of normative enterprise. Assert the necessity to hint the reality of moral judgments to a few self reliant ethical "facts" conditioning their objectivity, and you'll get a special realizing of what it's we're doing after we dispute law's authority within the identify of ethical values. Tracing the reality of ethical judgments again to our personal social practices not just impacts the character of war of words, it additionally dramatically raises our accountability whilst, as lawmakers, judges, or electorate, we take the legislations into our personal palms and confront it with our ethical expectancies.

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Extra resources for Legal Norms and Normativity: An Essay in Genealogy (Legal Theory Today)

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It also requires this object to be ‘autonomous’ or somehow ‘self-standing’. In contrast to Hart’s theory, for instance, which ultimately explains legal normativity by reference to social facts, Kelsen seeks to construct the law as an autonomous object, explainable by reference to normative considerations alone, without having to resort to either moral or factual considerations. Kelsen’s project, aiming at securing the independence of law qua object of cognition, must thus be restated as not only striving to defend the irreducible normativity of law against any construction denying its specificity and restating it in moral or factual terms.

Laws are made by ordinarily weak and perverted men, and nothing but feigned appearance can raise them above their corrupted humanity. The second element contributing to making the task of the legislators difficult amounts to their being ‘always between birth and death’, thus subject to finiteness, which does not fit easily with the purported permanence of their task. The will of men and women, as finite beings, is doomed to change and to that extent raises the issue of the alterability of the law.

40 Rousseau’s famous statement, ‘it would require Gods to give men laws’41 could be taken as indicating that only God can ‘resolve’ the problem of lawgiving, thus denying the ability of men and women — as ‘vain authorities’ — to give themselves 38 39 40 41 M de Montaigne 1991, III 13, 1216 (emphasis added). JJ Rousseau 1997, II 7, 70. See GA Cohen 1996, 167. JJ Rousseau 1997, II 7, 69. 17 Montaigne laws. Such a construction would nevertheless forget to take into account the conditional mode adopted by Rousseau, suggesting more the weakness of men in relation to the greatness of the lawgiving task than the necessity for the laws to be given by Gods.

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