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Conference Report - Pointed Reasoning on Normativity: Young Researchers in Legal Philosophy Meet in Würzburg
Published online by Cambridge University Press: 06 March 2019
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“For, he reasons pointedly, that which must not cannot be:” the last two lines of a famous poem by Christian Morgenstern bring the crux of normativity to the point: what is the relationship between facts and norms? The research of the past decades has increased rather than reduced the complexity of this fundamental question for legal theory. First of all, the relationship between facts and norms is still less than clear. Hans Kelsen had argued that facts and norms were to be clearly separated, but once the Grundnorm (basic norm) had turned out to be fictitious, the search for an appropriate description of the relationship between facts and norms began anew. Positivists after Kelsen based normativity on different facts, such as social acceptance or social discourse. Secondly, research on new modes of governance, in particular in the fields of European and international law, has revealed that behaviour can be influenced by “soft” norms and non-normative forms of governance just as much as by “hard” law. These results prompted some to consider legal normativity a matter of degree instead of an on-off issue.
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- Copyright © 2007 by German Law Journal GbR
References
1 Morgenstern, Christian, Die unmögliche Tatsache (1909), english translation: Max Knight, The Gallows Songs. Christian Morgenstern's Galgenlieder. A Selection (1964)Google Scholar
2 Kelsen, Hans, Reine Rechtslehre (2nd ed.,1960), english translation: Pure Theory of Law (1967)Google Scholar
3 Herbert Lionel Adolphus Hart, The Concept of Law (1961)Google Scholar
4 Habermas, Jürgen, Faktizität und Geltung 359–60 (4th ed., 1994). English translation: Between Facts and Norms (William Rehg trans., 1996)Google Scholar
5 See further Knill, Christoph and Lenschow, Andrea, Compliance, Competition and Communication: Different Approaches of European Governance and their Impact on National Institutions, 43 Journal of Common Market Studies 583 - 606 (2005).Google Scholar
6 In international law, the debate triggered by Prosper Weil's seminal article, Towards Relative Normativitiy in International Law?, 77 American Journal of International Law 413–442 (1983) is legendary. This view finds support in legal theory, see further Röhl, Klaus F., Allgemeine Rechtslehre 67 (2nd ed., 2001). For the position that the normativity of international law is relative, see further Ulrich Fastenrath, Relative Normativity in International Law, 4 European Journal of International Law 305–340 (1993); Peters, Anne and Pagotto, Isabella, Soft Law as a New Mode of Governance: A Legal Perspective, European Commission, Framework Program 6: New Modes of Governance Project, Paper No. 04/D11 (2006), available at: http://www.eunewgov.org/datalists/deliverables_detail.asp?Project_ID=04 (last visited February 2007).Google Scholar
7 The website of the forum is available at: http://www.rechtsphilosophie.de/jungesforum.html (last visited February 2007).Google Scholar
8 The papers from the 2004 conference can be found in Objektivität und Flexibilität im Recht (Carsten Bäcker and Stefan Baufeld eds., 2005). The papers of the 2005 and 2006 conference are forthcoming in the same series.Google Scholar
9 Jellinek, Georg, Allgemeine Staatslehre, 337 (3rd ed., 1914)Google Scholar
10 See supra, note 6.Google Scholar
11 See further Albert, Hans, Kritischer Rationalismus (2000).Google Scholar
12 See further Hilgendorf, Eric, Das Problem der Wertfreiheit in der Jurisprudenz, in Die Wertfreiheit in der Jurispruden, 1–32 (Lothar Kuhlen ed., 1999).Google Scholar
13 A thoughtful study, however, recently tried to claim that the text of norm constitutes an objective limitation to the meaning. See Klatt, Matthias, Theorie der Wortlautgrenze (2004). Forthcoming english translation: Klatt, Matthias, Making the Law Explicit (2007).Google Scholar
14 Müller, Friedrich and Christensen, Ralph, Juristische Methodik (vol. 1, 9th ed., 2004).Google Scholar
15 Brandom, Robert B., Making it Explicit (1994).Google Scholar
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