The place of legal normativity in legal philosophy is distinctive and strange: there is a widely shared (though not universally shared) view that theories about the nature of law should “explain legal normativity,” but there is sharp disagreement regarding both what “legal normativity” entails and what it would mean to “explain” it. In Shadows or Forgeries? Explaining Legal Normativity, Alma Diamond offers a helpful overview of the current literature, along with a radically different approach to the issue.
In the first part of the article, Diamond explores the three different understandings of “legal normativity” currently prevalent in the jurisprudential literature: (1) the view that law gives its subjects (“real” or “robust”) reasons for action; (2) the observation that legal language implies that law gives subjects reasons for action; and (3) the idea that law must be the sort of thing that is capable of giving reasons for action, and/or that law, by its nature, implicitly claims to give us reasons. One can see that in all three alternative approaches, the focal point is a focus on reasons for action: whether the law gives us reasons, whether it purports to give us reasons, or what follows from its being the kind of thing that might give us reasons. After Diamond provides a detailed overview and critique of the three alternatives, she argues that all three approaches “take for granted that the appropriate explanatory primitive is the notion of a ‘robust’ reason for action.” (P. 64.)
Many discussions of legal normativity raise questions about the extent to which law, as law, could always give subjects reasons for action, whether law can be like the parents who tell the child challenging their authority, “because I said so, that’s why!”1 Proving that law is robustly normative does seem theoretically to be an uphill battle. And this is where Diamond’s article is sharply different. Instead of starting from what one would need to show that law is robustly normative (or why or how it can be), the article’s alternative starting point is that “[l]egal practice just is a normative practice” (P. 66, emphasis in original), and that this should be our “explanatory primitive.” (P. 66.)
The fact is that many of us do treat the law’s prohibitions, prescriptions, and permissions as at least presumptively (defeasibly) reason-giving, and Diamond argues that we should explore this phenomenon theatrically (not as a matter of sociology or psychology). The article calls this a “practice-first approach,” and traces the idea to H. L. A. Hart, while noting the relevance of a wide range of other thinkers, including Ludwig Wittgenstein, Robert Brandom, and Christopher Möllers. The basic argument is that a feeling of community is connected to a shared normative world: “to recognize that one has a situation in common with other agents is to recognize that there are such things as normative constraints.” (P. 74.)
Diamond cautions that this article is “only a sketch” and only “the start” of exploring this option. (P. 75.) Similarly, the article sets its sights not on rebutting the current general approach to writing about legal normativity, but rather merely attempting “to show that there is an alternative.” (P. 77.)
Going forward, it might be productive to consider either the connections or the contrasts between Diamond’s “practice first” approach to legal normativity and the approach David Dyzenhaus elaborated in his recent book, The Long Arc of Legality.2 For Dyzenhaus, as for Lon Fuller, there is a normativity distinctive to law, based on reciprocity between rulers and subjects; this “internal” set of normative standards separate from the “external” normativity of conventional moral standards we also bring to our evaluations of law. One can see that for Dyzenhaus, as for Diamond, law simply does create its own normativity.
- Cf. William A. Edmundson, “‘Because I Said So,’” 7 Problema 41 (2013), also available at SSRN.
- Cambridge University Press, 2022. Diamond cites The Long Arc of Legality (P. 76 n. 156), but only for a limited point about detached normative statements.
