When we talk about things that we must do, we are talking about actions that are prescribed. What is it that prescribes these actions? In philosophical literature, people refer to norms and normativity to explain why it is that people do what they do. It is a topic of debate in the field of legal normativity whether all laws are in fact normative – that is, whether all laws do or do not prescribe action. Some laws may appear to be commanding a certain behavior under any conditions, while others merely pre-emptively require an action in order to do what you want.
This was the distinction made by H.L.A. Hart in the 1960s, in response to a completely command-centered view of normativity put forth in the 1830s by John Austin. Whether Hart’s counter-argument is valid is still a relevant philosophical discussion, and this argument is what philosophy major Shantanu Chatterjee seeks to disprove in his thesis, advised by Steven Arkonovich.
Both of the philosophers whose work Chatterjee is looking at are legal positivists, meaning they believe the law is reducible to social facts and that there is no natural law prescribed upon us. Their interpretations of how these laws were socially constructed represent a major divide in contemporary analytic jurisprudence.
Austin’s command-centered theory ascribes the political normativity of facts to the notion that they are all expressing threats or sanctions on the individual. According to Austin, “laws are threats expressed as commands and impose obligations on people because people do not want to face punishment,” says Chatterjee. All such laws are said to emanate from political sovereignty.
“Hart thought laws are expressions of social rules,” says Chatterjee, and that there exist some laws that are not normative in character. Some rules, according to Hart, are “power-conferring laws that enable people to access certain facilities like contracts and marriages,” Chatterjee says. Hart claimed that these laws do not impose obligations, but instead confer power to individuals. Because these laws do not impose obligations, they cannot be defined as normative. His work also rejected the idea that all normative laws emanate from commands from authority.
This would seem to have disproven Austin’s theory immediately, but Chatterjee believes there might be flaws in Hart’s syntactical analysis of the laws he singled out as non-normative. Chatterjee breaks down the marriage laws and other laws that Hart claims are merely faciliatory in nature into logical form: “If you want to do x, then you must do y.” According to Chatterjee, this raises a problem for Hart’s argument: “By defining x in terms of y, they’re saying if you don’t do y then you do not do x. Jurisdiction is restricted, but they still command someone to do something.”
These laws are conditional commands instead of just power-conferring general laws that grant power to individuals; he argues that the formal nature of these power-conferring laws is, in fact, a weaker version of a normative law. In essence, according to Chatterjee, the difference between these laws is a difference in degree and not a difference in kind.