George Letsas (UCL) - 'How to Argue for Law’s Robust Normativity'

Abstract: This paper aims to motivate the view that law possesses full-blooded normativity in a top-down way. It begins in morality and seeks to unpack the view that some practice is necessarily normative, in a full-blooded sense. Here is the dialectic of my inquiry: what would have to be true of morality, for the claim that some specific practice is full-bloodedly normative to be plausible? Assuming, as I will do here, that the practice of morality as a whole has full-blooded normativity, we should be able to give a plausible account of when some specific practice partakes of morality’s normativity. Put differently, it should be an open question whether this or that practice has full-blooded normativity.  The way the question of law’s normativity has so far been pursued in the literature fails this constraint. The paper argues further that the best sense we can make of this proposition is as the question of whether a practice constitutes as distinct sub-domain of morality, governed by obligations of role. Thus understood, the question of law’s normativity is an open one and it rests on contested ethical and meta-ethical assumptions about the structure of morality. If true, this account makes general jurisprudence no less interesting than the central questions of moral philosophy.