While both legal theorists Kelsen and Hart believe that legal normativity cannot be reduced to mere factuality or moral normativity, their approaches to interpreting the term itself differ. A comparison of their respective contributions to legal normativity is presented. The so-called positivist thesis that any law for its existence, validity and binding nature depends on its social factual source(s) is often accompanied, as in Raz`s “exclusive juridical positivism” (Raz 1980, 212-24; Raz 1985), with the thesis that judges, as “primary institutions applying the law”, have a duty (morally, if not legally) to decide certain types of cases (for example, cases in which the existing legal norm would operate through injustice) by applying moral principles or rules that justify modifying or even abandoning part of the existing law. “Inclusive” legal positivists mitigate this situation by asserting that the judicial duty and the empowerment to depart from existing law through the application of moral rules or principles is limited to cases where an existing social legal norm orders the court to do so; The effect of such a directive is to incorporate into the legal order the moral rules or principles (if any) referred to. The study of (i) how one legal system becomes independent of another through legal processes and (ii) how parts of a legal system (e.g. its constitution or rules for identifying public officials) are replaced by the illegal processes of coup d`état or revolution, shows (see Raz 1979, 100-109) that the identity of an existing legal system as a single system of legal norms cannot be explained (nor even described coherently) by a representation. which concerns only standards and their interrelationships as validation standards and validated standards. The non-instantaneous identity of a legal system depends on the existing identity of the community in question. Legal theory moves towards the historical understanding (including self-understanding) of a community and its members as a community – paradigmatically this nation-state – and not as a random sequence or agglomeration of persons and events, and this understanding must not depend to some extent on the legal norms that the community can successfully constitute for itself and its members.
There is no doubt that the common goal of coexistence based on the rule of law and the common memory of common recognition or recognition of laws such as ours are generally important elements of such a common understanding of political-community and legal identity. But other common goals, memories and a will to act must also be essential if the phenomena of legitimate independence and revolutionary constitutional amendment are to be what they are. By conscientiously confronting the conscientious question of the liberation of the destroyed victims, we become aware of the limits of this transcendence from within, which is directed towards this world. But this does not allow us to recognize the counter-movement of a compensatory transcendence of the afterlife. That the universal covenant of communion can function retroactively from the past, only in the weak midst of our memory, the memory of living generations and traditional anamnestic testimonies, falls short of our moral need. But the painful experience of a deficit is still not a sufficient argument for the hypothesis of an “absolute freedom that saves in death. 3According to this general thesis, legal normativity is not an empirical characteristic. This does not mean that the law does not have empirical characteristics or empirical objectives. In a contemporary cultural context, almost no one disputes that law – any legal system – is a human construct. For this reason, it is possible to give an empirical and causal explanation of how legal normativity “arises” or “exists” in our world.
At the same time, no one denies that legal norms aim to achieve certain empirical results and avoid others. In other words, one of its goals is to have causal relevance to motivational behavior. However, when we say that the law has a normative claim or that it is normative, we are not referring to those empirical characteristics that relate to its emergence or to some of its functions. We are saying that the law also has an evaluative or justifying claim. One of the paradigmatic aims of law is to create duties, prohibitions, and permits, and we cannot grasp this normative feature, or at least we cannot exhaust its meaning by empirical explanation. We can only understand the concept of legal normativity if we refer to other normative concepts. This entry in the Legal Theory Lexicon introduced some of the terminological difficulties that can accompany the use of the terms “normativity”, “morality” and “ethics” by legal theorists. These terms are often used in inaccurate ways that can be confusing! But the solution is simple: Set! Although the core of classical and traditional theory of natural law is therefore not tainted by a “naturalistic error” (Finnis 2018, 2.4.2), the non-practical knowledge of the facts in this theory counts in different ways.
