The Law and the Right. A Reappraisal of the Reality that Ought to Be

The Law and the Right: A Reappraisal of the Reality That Ought to Be provides an original discussion of normativeness in the law. This discussion proceeds from a concept of validity as a token’s congruence with a type, to the effect that validity pertains not primarily to rules but to tokens as instantiations of types in general. The concept of constitutive rule is reframed accordingly: Types, not rules, are constitutive, and rules are regulative. But not all rules are norms: Only those rules which are binding are norms, and (binding) norms are construed here as beliefs and psychological motives of human behaviour. On account of the way norms are internalized, and the way they exist in the human brain, they are compared to compulsive neuroses: The neurosciences will hopefully be able to shed light on this aspect of norms, as by working from within the frame of neuropsychiatric research into the pathological phenomena commonly referred to as “obsessive-compulsive disorders.” In parallel, norms are linked to the concept of the right—of what is right, as the author prefers to say. And many precedents are pointed out that illustrate these two concepts (of norms and of what is right), among them, the myth of fate as a forerunner to the idea of a norm; the concept of dikē as “the right” in Homeric epic; and, in Aquinas, the concepts of jus as “what is right quod est rectum toward others,” ratio as “type,” and lex as “binding norm.” This general construction draws inspiration from Scandinavian legal realism and from Hart’s Concept of Law (of 1961), in which Hart praised and shared a conception of normativeness in law that had been developed long before by such Scandinavian legal realists as Axel Hägerström (in 1917) and Karl Olivecrona (in 1939). And it is argued that Hart’s Postscript of 1994 abjures such normativeness in law so as to reserve the normative dimension only for morality: This is what Hart had to pay as a price for holding on to his thesis of the separation between law and morality, a thesis he would otherwise have had to give up in view of Ronald Dworkin’s sharp criticism