Making Sense of the Disagreements about the Nature of Law: The Puzzles of Legal Normativity and Human Autonomy

Abstract

The thesis attempts to make sense of the disagreements in legal philosophy about the relationship between legal norms and requirements of morality. In particular, it asks why positivists and non-positivists explain in opposing ways the moral requirements, if any, of legally valid norms. In the first part of the thesis I defend the idea of the rule of law, or legal normativity, as being based on an inherently moral phenomenon: substantive equality of those subject to legal power. I defend the idea that respect for this moral phenomenon inherent in the rule of law leads to compliance with principles of substantive justice which are inherently moral. I then show how failure to adhere to the requirements of legal normativity has led, in the British control orders saga, to failures of substantive justice.
In the second part of the thesis I explore in further detail the moral characteristic specific to legal normativity. I argue that legal norms necessarily possess binding force, or normative force, for those that are subject to legal power. I then seek to ascertain the source and extent of the normative force of law. I identify it in the moral idea of respect for human autonomy understood as the defining human ability to act for reasons. A legal community, I argue, can only exist in a community of autonomous beings. This explains and justifies, among other things, why the law acts through legitimate authority. It also explains the limits of the moral fallibility of law: the law can fail morally in several ways but it cannot fail to respect the idea of human autonomy. This explains the source of the disagreements in legal philosophy. Legal validity and moral requirements are inseparably related, but only in specific ways. It is the idea of human autonomy which links law to certain moral requirements.