Different theories of law are situated within different pictures of our normative landscape. This essay aims to make more visible and attractive one picture that reflects basic positivist sensibilities yet is oddly marginalized in the current jurisprudential literature. The picture that I have in mind tries to vindicate surface appearances. It maintains that the social world is densely populated by countless normative systems of human construction (“artificial normative systems”) whose core functions are to generate and maintain norms (oughts, obligations, powers, rights, prohibitions, and the like). The norms that these systems output are conceptually independent from each other, and may conflict. Because artificial norms possess only “thin” or “formal” normative force, whether you “really” ought to comply with any system’s norms is always an askable question that the system cannot itself resolve. Paradigmatic artificial normative systems include sports, games, fashion, etiquette, grammar, and many more.
The “Standard Positivist Picture” (as I will call it) views legal systems as constituting a subclass of artificial normative systems, and suggests that legal philosophers can make progress on many central questions by expanding their focus to encompass that larger class. This essay sketches the Standard Positivist Picture, and contrasts it with other pictures embraced or assumed in prominent recent jurisprudential scholarship, notably including the “One-System Picture” that Dworkin advocated in Justice for Hedgehogs. It also shows how the picture fits with Hart’s account in The Concept of Law, and attributes Hart’s subsequent disavowal of key elements of the picture to his mistaken embrace of Raz’s reasons-fundamentalist conception of normativity.
Jurisprudence, positivism, theories of law, metanormative theory, artificial normativity, Ronald Dworkin, H.L.A. Hart, Joseph Raz, Mark Greenberg, Scott Hershovitz, one-system picture, principled positivism, legal norms, normative systems, philosophy, political morality, distinctiveness of law
Dimensions of Normativity: New Essays on Metaethics and Jurisprudence
Berman, Mitchell N., "Of Law and Other Artificial Normative Systems" (2019). Faculty Scholarship at Penn Carey Law. 1923.
Ethics and Political Philosophy Commons, Jurisprudence Commons, Law and Philosophy Commons, Other Philosophy Commons, Public Law and Legal Theory Commons
In Dimensions of Normativity: New Essays on Metaethics and Jurisprudence (D. Plunkett, S. Shapiro, and K. Toh eds., Oxford 2019)