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Mark F. Grady
U.S. juries possess the power to forgive even obvious negligence and frequently exercise it. Judges and courts facilitate this disposition of cases by regularly affirming juries’ decisions to forgive negligence. This practice creates a problem for corrective justice theories of negligence, which commonly assert that the purpose of negligence law is to repair harm. This reparative purpose is not achieved in the many cases in which juries forgive negligence. In addition, juries impose negligence liability on many acts and omissions that are not wrongs in any moral sense. Negligence liability is best understood, not as a moral system, but as a “stochastic tax.” Someone whose negligence has been forgiven by a jury has experienced “justice luck.”
Connie S. Rosati
Bix would like to see legal theorists abandon the currently common view that law makes moral claims. He favours instead, an account of law’s normativity along the lines of Hart’s account (and relatedly, Kelsen’s). I argue that in order to make a persuasive case, Bix would need to offer more to those who find a view like Hart’s wanting. It is not clear that Hart’s approach has the advantages Bix claims for it, and in any case, Bix does not acknowledge or address the view’s critical defects. For these reasons, I conclude, Bix hasn’t really shown how “a more deflationary /…/ understanding of the nature of law is tenable,” or how it “may in fact work better” than morality-focused understandings of law’s nature—at least not if we want to understand the normativity of law. I suggest that efforts to understand law’s normativity would benefit from taking into consideration discussions of normativity in contemporary metaethics.
Brian Bix discusses questions of legal normativity, arguing (1) that Hans Kelsen’s theory of the basic norm is best understood as saying that a person may choose to presuppose the basic norm in order to interpret the actions of legal officials normatively; (2) that H. L. A. Hart is best understood as espousing a sui generis view of legal normativity; and (3) that Hart’s view is preferable to the rather popular view that law makes some sort of moral claim. I accept (1) but think it is rather trivial. I find (2) plausible but the view itself problematic, and am therefore skeptical of (3).
Brian H. Bix
In this response to eight commentaries on my article “Kelsen, Hart, and legal normativity” I clarify some points in my original analysis and agree with some comments regarding work that still needs to be done. In particular, I attempt to distinguish my position from both Berkeleyan idealism and mere subjective perception. I agree with the commentators who urge that more must be done to analyze the nature of normativity in general, and legal normativity in particular.
Mark A. Geistfeld
Welfarism is the principle that the goodness of a social state is an increasing function of individual welfare and does not depend on anything else. As Gregory Keating argues in the lead article for this symposium, welfarism cannot account for important normative differences between physical security and liberty, leading him to conclude that liberal egalitarian principles rule out cost-benefit analysis for setting health and safety standards. Despite its apparent logic, the idea that economic analysis is incompatible with or irrelevant to a rights-based principle of fairness is mistaken. Tort law shows why a legal system that protects the individual right to physical security can be usefully guided by the methodology of cost-benefit analysis. Welfare does not have to be the master value in order to be relevant, creating an integral role for cost-benefit analysis outside of welfarism.
In this essay, I respond to Keating’s claim that harm prevention is a normative principle that rationally guides the law. Starting with tort law, I argue that though there are doctrines like strict liability that seem to reflect the priority of harm prevention, they can be explained differently. Rather than reflecting a concern with preventing harms, I suggest these doctrines are based on concerns with the distribution of losses. I then argue that it is not obvious that societies in fact prioritize harm prevention, and question whether they should when the costs of doing so outweigh the losses. Finally, I raise some questions about the method of argument that relies on appeal to intuitions about concrete cases, which Keating and others rely on in arguing for the priority of harm prevention.
In this contribution, I discuss the so-called “unambitious view of legal normativity”, as it is specifically theorised by Brian Bix. While I agree with Bix that legal normativity should not be assumed to be reducible by default to moral normativity, I will argue that the normativity of law cannot be qualified as a sui generis form of normativity, for, pace Bix, the quality of legal normativity is best understood as genuine. That is, the normative claims the law makes on its subjects do address the general practical question: What ought we to do?
Unlike Kelsen, Hart never had the 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).
The normativity of law is usually discussed by reference to the concept of reasons for action. Legal philosophers frequently avoid referring to the dispute among different conceptions of reasons in moral philosophy. This paper briefly presents basic positions in this dispute (distinguishing motivating and justificatory reasons, and the dispute between internalism, counterfactual internalism, and externalism). Brian Bix appears to adopt the internalist stance. The paper argues that internalism is not able to explain the normativity of law, since legal reasons are objective and external, as they do not depend on actual knowledge and motivation of the agent. A specific problem arises with respect to the rules of recognition. If the rule of recognition is a duty-imposing rule, the reasons for the official to follow this rule must be internal. It is argued that the rule of recognition is not a legal rule and the obligation to follow it is not a legal obligation.
This response to Brian Bix’s recent article on legal normativity considers the potential benefits of Bix’s approach in the light of contemporary debate upon the subject but argues for an alternative approach that focuses on the finding of legal normativity within a specific system of law and recognizes a normativity for those subject to that law whether they are well disposed to it or not. Three different ways in which a quality of normativity might be found for a legal provision concerning the conduct of a person are distinguished, so offering a richer and more illuminating analysis of the individual subject’s attitude or choice towards legal normativity. However, it is claimed that the overall picture advanced here supports a simple view of legal normativity, avoiding entanglement with moral controversies and complex theoretical speculations.
Brian Bix claims that the explanation of legal normativity does not require reference to any robust normative facts. I seek to vindicate his claim by engaging in a more fine-grained discussion of the explanation of legal facts as found in the work of Hans Kelsen, one of the authors discussed in Bix’s paper. The argument starts with a reconstruction of Kelsen’s account in a more contemporary philosophical vocabulary. Then, I draw a comparison with the well-known attempt, developed in Saul Kripke’s reading of Wittgenstein, to explain the normativity of meaning. Against the backdrop of the comparison, I diagnose a challenge arising for both meaning and law, which takes the form of an explanatory gap argument. Kelsen’s notion of imputation is proposed as an answer to the challenge, which is capable of bridging the relevant gap. Finally, I address some shortcomings Bix identifies as potential threats for Kelsen’s weak explanation of normativity.
María Cristina Redondo
This paper comments on Brian Bix’s article “Kelsen, Hart, and Legal Normativity”. It provides some remarks regarding the concept of normativity and subscribes to the idea that it should not be reduced to an empirical nor a moral property. The discussion is primarily focused on the current, post-Hartian thesis that reduces legal normativity to moral normativity. In this regard, on the one hand, it advances a criticism of Bix’s analysis, which at first glance rejects both forms of reductionism but, at the end of the day accepts a post-Hartian approach that treats normativity as a moral property. On the other hand, it highlights that this moralist concept of normativity is primarily based on the assumption that normative terms have a unified meaning in moral and legal contexts and that, according to that meaning, normativity is a moral property. The proposal is that within a positivist approach, it is necessary to discuss these assumptions in order to give an adequate account of legal normativity as an essential property of every legal system.