Special Workshop Abstracts

Special Workshop Title:	Coherence Theory of Law and Analogy
Author:	Stefano Bertea
Paper Title:	Legal Systems’ Claim to Normativity and the Concept of Law
Abstract:	In this paper, I will address the implications that legal systems’ claim to normativity has for the concept of law. By claim to normativity I mean the contention made by legal systems to place people under obligations that they would not otherwise have, namely, law’s presenting itself as a body of authoritative standards and requiring all those to whom it applies to acknowledge its authority. While traditional schools of legal thought (legal realism, legal positivism and natural law theory) have recognised that such a claim is at the very least implicit in all legal systems, they have failed to fully appreciate the theoretical consequences that this thesis has for the concept of law. In the paper, firstly I criticise the traditional dealing with law’s claim to normativity. In this context, I argue that legal realism puts forward a sanction-based theory which fails to explain the notion of having an obligation and, thus, cannot come to terms with the idea of legal normativity; legal positivism theorises a rule-based account of normativity which ends up to regard a specific subjective state, the internal point of view, as the bearer of normativity and, as a result, cannot elucidate the objective character of legal obligation; finally, natural law theory connects legal normativity to the idea of law as a set of universal values which are fixed in advance and independently of concrete and historical societies, but this is a hardly tenable idea and disqualifies the naturalist dealing with legal systems’ claim to normativity. Secondly, I intend to present the outlines of an alternative account of law’s claim to normativity. Here, I submit that a conceptual relationship obtains between this claim and the concept of law. Accordingly, to the extent that we refute the traditional approaches to legal systems’ claim to normativity we should rearrange our concept of law. This means to replace the traditional accounts with a more integrated and comprehensive theory of law. To explain law’s claim to normativity, I argue, we have to endorse the idea that law is an argumentative practice. An idea which has been set out by such legal argumentation theorists as Robert Alexy and Ronald Dworkin. Therefore, it is submitted, legal systems’ claim to be normative practices imports the need of framing the concept of law in accordance with the thesis that argumentation makes up the bare bones of the very concept: solely a comprehensive approach built on this thesis can adequately elucidate law’s claim to give its addressees reasons to act.