Elusive"Normativity"
#"review"article"on"Bertea’s"The"Normative"Claim"of"Law"1"
Preface"
This article deals with the nature of normativity, a topic which is rather popular nowadays, both in
ethical theory (Korsgaard 1996; Wedgwood 2007) and in the philosophy of law (Delacroix 2006;
Bertea and Pavlakos 2011). It starts with a review of Stefano Bertea’s book The Normative Claim of
Law (Bertea 2009). One of the main assumptions of this book is that the normativity which the law
according to Bertea claims to have cannot be reduced to matters of fact, such as the psychology of
the law users. The second part of this paper is mainly devoted to a scrutiny of this assumption.
Whether, and in what manner such a ‘reduction’ is possible are the questions which guide this
second part.
1 Internalism,"externalism"and"the"dual"nature"of"the"law"
The law has a seemingly dual nature. On the one hand it contains guidelines for action; it tells its
addressees amongst others2 what to do and what not to do. On the other hand, it has the ring of
objectivity, because most, if not all, of the law seems to exists in a way that can be established by
means of our senses, namely by studying the sources of law. This dual nature, if it really exists, is
attractive because it is not at all obvious that something can be objective and nevertheless guide
behaviour. Under the influence of, amongst others, Hume, who suggested that an ‘ought’ cannot be
derived from an ‘is’ 3 and Kant, who argued that real normativity is autonomous4, the impression was
created that guidance of behaviour cannot be combined with objectivity. Because of its dual nature,
the law seems to be a counterexample against this view.
However, the view that normativity cannot be objective is persistent. If the law is really objective,
does not this imply that it is not really normative? Ethical theory has developed terminology which
facilitates this kind of discussion. It makes the distinction between internalist and externalist theories
about the nature of morality. Internalism with regard to (moral) ought-judgements is one of the
following views:
a. A person who sincerely believes that he ought to do X will normally be motivated to do X.
1
2
3
4
This review article has benefited substantially from comments by Bertea on a draft version. It is not to be
expected, however, that Bertea agrees with all, or even most of my comments on his work. Neither is he
responsible for any remaining misunderstandings on my side.
This ‘amongst others’ is important, because the law creates a whole ‘world’ of institutional facts.
(MacCormick 2007; Hage 2011b) Only part of this world concerns the issue what to do. Many authors
consider this part to be the most important one; the rest would only be auxiliary. A prominent example of
this view is Hart, who called duty-imposing rules primary rules, and the rest secondary rules. (Hart 1994,
chapter V)
Hume 1978, Book III, section 1.
Kant 1906, 432/ 3.
b. A person who sincerely believes that he ought to do X will normally also believe that he has a
reason to do X.
c. A person who ought to do X has a reason to do X.5
It is also possible to take an internalist point of view with regard to reasons for acting, and then it
would amount to something like the following:
d. A person person who sincerely believes that he has a reason to do X will normally pro tanto
be motivated to do X. 6
Externalism is the view that such a necessary connection between what one should do and the
motivation or reasons for doing so does not exist. It would allow, to borrow an example from Smith
(1994, 60) that a persons says: ‘I admit that I should give to famine relief, but I do not see that I have
a reason to do so’.
Given this terminology, one might allow that the law is objective, but combine this view with an
externalist stance towards the law (a ‘detached ought’; Raz 1979, 153). It can objectively be
established what one should do legally, but this does not imply that one has also reason to do it
(externalism). Or one might reason the other way round: One has reason to do what the law
prescribes (internalism), but precisely therefore, it cannot be established objectively what the law
prescribes.
2 Bertea’s"argument"
It is this discussion in which Stefano Bertea’s book The Normative Claim of Law (Bertea 2009) takes a
position. In this book Bertea aims to do two things. First he defends the view that the law makes a
normative claim on us. And second he aims to found this normative claim. In doing these two things,
Bertea hopes to increase our understanding of the law.
2.1
That"the"law"makes"̇"normative"claim"
What is this normative claim of the law? That is the claim, allegedly made by the law, that it guides
conduct by providing its addressees with reasons for acting as directed (62). 7 So the law would claim
that it should be approached from an internalist perspective.8 In the first chapter of his book Bertea
argues that the law can indeed make such a claim. It might be doubted whether the law can make
any claims at all, since the law is not human and claiming seems to be an illocutionary act (Austin
1975, 98-132; Searle 1979, 54-71), while performing illocutionary acts seems to be a typical human
activity. Bertea addresses this problem by representing the law (people, norms, interactions,
5
6
7
8
The different variants of internalism were inspired by Smith 1994, 61/2, but do not fully coincide with the
distinctions made by Smith, however.
The ‘pro tanto’ clause is inserted, because having a reason to do A does not imply that one does not have
reasons against doing A. The motivation issue will normally be determined by the balance of all
contributory reasons. The relation between a single reason and motivation is merely ‘pro tanto’ (as far as
this single reason is concerned), because the reason itself will normally have a motivating effect, but this
effect may be canceled out by contrary motivating effects. Compare it to Buridan’s ass, which did not move,
being motivated by a stack of hay and a pile of water at different sides of it.
References without additional information are to the page numbers of The Normative Claim of Law
Readers familiar with the work of Hart will notice that taking this internalist perpsective is at least similar to
taking the internal point of view in Hart’s sense.
practices, processes and states of affairs ) as a unitary system of interconnected illocutionary acts
and attributing the normative claim to this system as a whole.
That the law makes a normative claim on its addressees seems to me to be above discussion. At least
part of the law consists of rules that indicate what its addressees should do. It is pointless to have a
practice which contains such rules if it is not the aim of this practice to guide conduct. This is in my
opinion so obvious that the complex argument presented by Bertea makes the impression of being
needlesly complicated. The conclusion of the argument is correct, though.
In the second and third chapter Bertea intends to spell out the essential traits of the normative claim.
He does so by arguing that neither inclusive legal positivism (chapter 2), nor exclusive legal positivism
(chapter 3) does full justice to the normative claim of law.
Inclusive"legal"positivism"
Inclusive legal positivism is the view that legal norms are identified by means of a convention. This
convention may, but does not have to, refer to moral considerations. According to inclusive
positivism, legal institutions can guide action by providing legal officials with practical reasons of a
distinctive legal kind. These reasons are not reducible to moral reasons; they hold independently of
their content, and they preclude further deliberation as to how we ought to act (75).
Although Bertea sees much of value in the inclusive-positivist account of the law, he nevertheless
finds this account defective on three scores: 1. The necessary status of the normative claim is
insufficiently established. 2. The notion of normativity is wrongly characterised. 3. The scope of
normativity is constructed too narrow. (78)
Bertea substantiates the claim that inclusive positivism suffers from the first of these ‘defects’ by
reference to the view of Kramer, who is taken as a representative of inclusive positivism. According
to Kramer, legal prescriptions are imperatives rather than prescriptions. Whereas, according to
Bertea, prescriptions create reasons to act and therefore inhabit the realm of ‘ought’, imperatives
are rather instances of a ‘must’, deriving their force from the penalties attached to non-compliance
(76).
This argument as an argument against inclusive legal positivism in general suffers from at least two
weaknesses. First, it is dubious to base criticism of a legal-philosophical current such as inclusive
positivism on alleged defects of only one adherent of this current. And second, it is not at all clear
why imperatives backed up by sanctions could not generate reasons for acting. It is obvious that they
are not the Kantian-style reasons which Bertea will later defend, but to demand that they would be is
begging the question. A person who is ordered to do something and threatened with a sanction in
case of non-compliance still has some choice whether to comply with the order or not. Arguably the
threat of the sanction does not leave this choice a free choice, but even an unfree choice is a choice
and not a must. If a robber puts a gun against my head, I have a very strong reason to do what he
asks from me, and it is little comfort to know that it might not be a ‘real’ reason.
The second defect of inclusive positivism according to Bertea is that the normativity of law is
characterised as being based on acceptance. A legal norms would bind, in the end because it is
accepted as binding. This would make bindingness a socio-psychological category instead of the
moral category it is according to Bertea. Whether this is a mistake will be one of the main topics of
the following sections of this paper. In my opinion it is a strength, rather than a defect of inclusive
positivism.
The third defect would be that according to inclusive positivists, the law binds officials, and not all
legal subjects. Bertea ascribes this view to inclusive positivists because of Coleman’s position that the
(ultimate) rule of recognition is based on a shared cooperative activity of legal officials. One may
wonder, however, whether it follows from the fact that officials are bound by the rule of recognition,
that other legal subjects are not bound by the law. If the law is normative, provides reasons for
action, this normativity should be looked for in the internal point of view taken up by (most of) the
participants in the legal system, and not in the practice of legal officials.
Therefore, in order to substantiate his third objection against inclusive legal positivism, Bertea should
have argued that according to this view only officials are bound by the law, and in particular by the
(ultimate) rule of recognition. Some support for this view might be found in Hart’s Concept of Law
(Hart 1994, 116/ 7), but Bertea provides us with no such argument. And even if he had done so, he
would still have had another obstacle to overcome. According to Hart, the ultimate rule of
recognition is a social rule, and therefore not part of the law (Hart 1994, 108/ 9). So, if the officials are
only bound by the ultimate rule of recognition, they are still not bound by the law.
Probably it is best not to ascribe to inclusive legal positivism in general any view concerning the issue
who are bound by the law, and then the third objection cuts no ice. That does not subtract, however,
from the fact that Bertea rightly objects against the view, whether it is implied by internal legal
positivism or not, that the law would only bind officials.
Exclusive"legal"positivism"
The exclusive positivist account of the law as exemplified by the work of Raz fares little better in
Bertea’s eyes. Bertea mentions (amongst others) the following characteristics as essential for Raz’s
position (107).
1. Legal reasons are practical reasons and are therefore in this respect (similar to) moral reasons. This
aspect of Raz’s view is applauded by Bertea.
2. Legal reasons are authoritative reasons which exclude other reasons. Exclusion means in this
connection that the other reasons are not counted anymore in determining what should be done.
Bertea disagrees with this position. Legal reasons may be (very) strong reasons, but they do not
exclude everything else.
3. Because legal reasons are authoritative, they derive their binding force from the authority who
issued them and for that reason they are content independent. Here Bertea disagrees, basically for
the same reason as under 2. Yes, the law is based on authority, and is in this sense formal, but this
authority does not replace the underlying substantive reasons. Authorities are authoritative because
they tend to be substantively right. Substantive rightness may be pushed to the background by legal
authority, but is never completely replaced by it.
2.2
Whether"the"normative"claim"is"founded"
In the second part of his book, Bertea changes focus. The questions whether the law lays a normative
claim on us and what the nature of this claim is, is replaced by the question how the normative claim
can be justified. Why does the law bind? In this connection Bertea addresses three questions, namely
whether the normativity of law can be reduced to purely factual characteristics, how normativity in
general can be founded, and what this implies for the normativity of the law.
Reductionism"
The first of these three question is the topic of chapter 4. In this connection Bertea argues that the
normative cannot be reduced to the factual, basically because norms, unlike facts, are not only
efficacious or inefficacious but also valid or invalid (170). This last characteristic is interpreted by
Bertea as the meaning content of a normative standard, as an interpretative standard that gives
determinate sense to events (153). Moreover, even if validity could be reduced to the factual, this
would be a reduction of the wrong kind, because ‘factual validity’ might show how the law (and
morality) can compel action, but not how it can do so unconditionally, that is independently of
anyone’s willingness to accept the guidance of the law (170). In Kantian terminology, it cannot show
how factual validity could become a categorical, instead of merely a hypothetical imperative.
Bertea’s first argument against reductionism has a strong ring of circularity. To begin with, not only
norms are valid or invalid, but also arguments, goals (in soccer), attempts (in high jumping), and all
juridical acts, such as contracts, legislation, administrative dispositions etc. Their validity consists in
their being in agreement with the standards that hold for them. So validity in general has nothing to
do with being the meaning content of a normative standard.
Apparently the validity of norms is a special kind of validity. But what might this special kind of
validity be? The suggestion is strong that validity is precisely the special nature of normativity that is
assumed to be non-factual. However, if that suggestion is taken seriously, Bertea’s argument is
plainly circular: normativity cannot be reduced to facts, because facts are not normative.
Bertea’s second argument will be discussed later, because I will argue that the only kind of
normativity which is understandable is what Bertea would call factual normativity. This factual
normativity has nothing to do with hypothetical imperatives, however.
Modified"Kantianism"
My formulation of Bertea’s criticism of reductionism, ‘Factual validity can at best become a
hypothetical imperative, never a categorical one’, preludes on the turn which Bertea’s argument
takes in the fifth chapter of his book in which he addresses the foundation of law’s normativity.
Following Kant he looks for this foundation in the rational nature of man. Because Bertea hesitates to
swallow the Kantian metaphysics according to which the will is free because man partakes in the
noumenal world, he offers a ‘modified Kantian account’ of the foundation of normativity.
The first step in his argument is that the normativity of law is a species of the more general
normativity of practical reason, because the law is a praxis (172). Later Bertea elaborates a bit on this
point, when he writes that at least three features of the law account for its membership in the
conceptual family of practical reason. These reasons are that:
1. the basic vocabulary and fundamental ideas of the law, such as ‘obligation’, ‘permission’ and
‘right’, are forged by practical reason itself;
2. several legal practices are concerned with finding rational ways to cope with practical issues
and set standards of required conduct;
3. rationality plays a crucial role in the law (175).
As we will see in section 4, this short passage – too short given its importance – is crucial for much of
Bertea’s argument.
The normativity of practical reason is, according to the author, based on the self-conception of
human beings as reflective, autonomous and rational beings (202). This self-conception is in Bertea’s
words a practical necessity, a necessity based on the status of humans as agents, as subjects capable
of action (207). This status is presupposed by the very idea of practical reason, namely that
normativity is based on reasons for action (205). To state it simply, human agency is acting for a
reason, and this is only possible for a being that reasons (reflective and rational) and is capable to act
on the basis of reasons (autonomous). Therefore we have a duty to comply with the demands of
practical reason, unless we are ready to give up our distinctiveness as human agents (210).
Later we will see that this line of argument, which strongly reminds of classical natural law theory,
because it derives guidelines for acting from (presuppositions concerning) human nature, is an
instance of epistemic foundationalism, and suffers from the drawbacks attached to it.
Normativity"of"law"
In the sixt and last substantive chapter of his book, Bertea aims to show what the implications are of
his views that the law is normative to the extent that it complies with the standards constitutive of
human agency and that this normativity has the modified Kantian grounds which he advocated. First
Bertea defends, amongst others through a discussion of the opposite views of Fish (1989), that the
law derives its normativity from human agency. In short: the law can only be normative to the extent
that it supports human agency in the sense of reflectivity, rationality and autonomy (232/ 3). This
support is not an all or nothing matter, but rather a matter of degrees. Moreover, it may involve
weighing and balancing and therefore requires argumentation (244)
With regard to the support provided by the law to human agency, Bertea mentions rules which right
out support agency either by being deducible from it, or by prescribing what is justified by human
agency or prohibiting what is not justified by it (234). There are also rules which contradict human
agency , and if this contradiction is sufficiently serious, such rules lack normativity, although they
may still be legal rules ( 241 and 255). And finally there may be rules that are indifferent to human
agency. Such rules may have indirect normative force because they belong to a system which as a
whole has normative force because it supports human agency (248). Bertea discusses some examples
of rules that allegedly support or contradict human agency, such as rules against racial
discrimination, rules that create strict liability, and rules that allow torture.
2.3
Evaluation"of"the"book"
The nature of the law is one of the central topics of legal philosophy, and deserves the attention it
has received, mostly in the English speaking part of the world since Hart’s ground breaking work The
Concept of Law. Bertea’s book fits in this tradition. Moreover, it takes a position which he himself
calls non-positivist, but which might in my opinion just as well be called a version of classical natural
law theory. Although it is possible to criticise Bertea’s views, the author offers an intelligent version
of such a theory, in which he does not avoid discussion with both recent versions of legal positivism,
his Kantian source of inspiration, and other recent authors. For this reason, The Normative Claim of
Law deserves to be read by anyone interested in the modern discussion about the nature of law.
Bertea is very explicit about his claims and the reasons he offers to support them. For instance, he
states at the beginning of his book what his main line of argument will be, follows this line in the six
main chapters, and summarises his findings in the conclusion of the book. The same approach is
taken in each individual chapter, where the argument of that chapter is both previsaged, then given,
and finally summarised. This has the advantage that the reader can easily keep track of where he is in
Bertea’s line of reasoning. The unavoidable disadvantage is that the text is rather repetitious.
The main question, however, is whether Bertea convinces. I have already argued that his view that
the law claims to be normative is correct, even obviously so. Whether this is precisely the kind of
normativity that Bertea has in mind is a different matter, though. More disputable are Bertea’s views
that the law, to the extent that it satisfies the demand that are constitutive of human agency, is
normative, that this normativity is the normativity of practical reason in general, and that it is based
on human agency. It is to these issues that I will turn in the rest of this paper.
3 Two"views"of"the"law"
To answer the question whether the law is normative we must be clear what we understand by
‘law’and by ‘normativity’. There are many different views possible about the nature of law, but I
think they can sensibly be grouped under two headings, namely positivist and normative views of the
law. Under positivist theories of the law I understand those views according to which law is by
definition - and not merely as a matter of contingent fact - positive law, without additional demands.
The rules of law are on this view by definition those that exist in social reality. In modern legal
systems this means that the legal rules stem from a limited number of sources by means of which the
law is laid down. A number of centuries ago, most positive law was customary by nature.9 Arguable,
customary law is not positive law in the strict sense, because it was not ‘posited’, laid down. With
positive law in this more narrow sense, customary law has in common that it exists as a matter of
social fact. And since this criterium – existence as social fact – is also used to identify positive law, I
classify customary law under positive law in a broad sense.
On the assumption that the law is by definition positive law in this broad sense, it is not on
beforehand clear why this law would be normative. Then Austin’s memorable phrase ‘The existence
of law is one thing; its merit or demerit is another’ (Austin 1954, 184) seems to take on. If one makes
a sharp distinction between the factual and the normative, as Bertea does, it seems that the law as
positive law can only receive its normativity from the ‘outside’. In Bertea’s argument, the contingent
nature of law’s normativity is exhibited in the fact that the law is only normative to the extent that it
complies with the standards constitutive of human agency. We can therefore conclude that a
positivist view of the law seems to lead to an externalist view of law’s normativity. A person who
sincerely believes that a particular line of action is prescribed by the law, does not need to be
motivated accordingly, nor must he believe that he has a reason to comply, nor does the presence of
a legal duty imply a reason to comply with the duty.
In the next section I will argue that on a different, and in my view better, conception of the relation
between the factual and the normative, the normativity of positive law does no need to be
contingent in this way. By way of a brief detour, I want to argue that the normativity of law is rather
uncomplicated if ones has a normative view of the law itself.
Normative views of the law consider the law to be the answer to some ‘normative’ question, some
version of the question what to do. And it is true, necessarily true it would seem, that the answer to
the question what to do tells one what to do. That the law is first and foremost an answer to the
question what to do is nowadays far from obvious. The view that the law is positive law has become
so pervasive that it has become customary to treat evaluative and normative questions in relation to
9
Sometimes, custom is categorised as one of the sources of law, as is done in art. 38 of the Statute for the
International Court of Justice. This is problematic since rules must already be counted as law in order to be
categorised as customary law. They are custom, because they are law, and not the other way round.
Customary law is by definition not source-based.
the law as questions what would be desirable law, or which law we should have. Evaluative and
normative standards are not standards to determine what the law is, but standards to measure the
independently existing law against. And yet this almost standard approach cannot explain why so
much legal reasoning is evaluative and normative by nature. On a normative view of the law,
however, it is easy to explain why legal reasoning so often relies on the study and interpretation of
social reality in general and special texts (legislation, case law, treaties) in particular. Legal certainty is
highly desirable and positive law is a major source of legal certainty. Therefore it is highly desirable to
have positive law and for that reason (and not by definition or convention) positive law is law. The
positive law is on this view not necessarily part of the law, but there are good reasons to assume that
even on a normative view of the law, positive law forms the bulk of the law. Authors who mentioned
these good reasons include Thomas Aquinas (Summa Theologica I,2 Q. 96 art. 4), Gustav Radbruch
(1973, 165), and Lon Fuller (Fuller 1963, ch. II).
We have different normative practices, such as the prudential one in which individuals ask what is
wise for them to do, and the moral practice, in which the question is what one should do, taking not
only one’s own interests10 into account, but also those of others. The law neither coincides with
prudence nor with morality. It concerns guidelines for behaviour which tend to be enforced by
collective means, nowadays mostly by state organs. Taking this relation to collective enforcement
into consideration, one might characterise the law as those rules which should be enforced by
collective means. This characterisation of the law makes most sense if there exists a social practice of
collectively enforcing a set of rules. These rules would be rules of positive law. The existence of
positive law would then be a precondition if the normative standard for the identification of law tout
court is to make sense.
Since the desirability of enforcement is closely connected to the desirability of the behaviour which is
enforced, the step from the premise that a particular rule should be enforced with collective means
to the conclusion that this rule should be complied with is a small one. And therefore the normativity
of the law on this normative view of the law is quite obvious.
One might ask whether this view implies that all positive law can rightfully claim to be obeyed. The
answer is negative, because rules that do not deserve to be collectively enforced, not even because
of their positivity, are not legal rules. They may be positive ‘law’, but in the end they are not law.
Here we have arrived at the natural law position which is nowadays not even defended anymore by
self-acclaimed natural law theorists such as John Finnis (Finnis 1980, 276-281). Nevertheless this
position seems well defendable if one does not start from the assumption that the law is a social
phenomenon.
This brief discussion of normative views of the law was meant to illustrate that it does not need to be
a difficult issue to determine whether the law is normative. On a normative view of the law, the law
is normative by definition. As we have seen, normative views of the law are not very popular
nowadays, and we will ignore this approach for the rest of this paper. The central question for most
of the remainder will be how a positivist view of the law relates to the normativity of law. It is in this
connection that we will go into some detail concerning the nature of normativity.
10
I want to leave the question open whether morality also serves values which are not merely instrumental
towards interests.
4 The"nature"of"normativity"
We have seen that Bertea ascribed a view of normativity to inclusive legal positivists which he thinks
is wrong, because according to this view normativity is based on acceptance. Such a sociopsychological category would not suffice; the normativity of law should be the normativity of
morality. Whether this is correct depends not only on the nature of the law, but also on what the
normativity of morality amounts to.
According to Bertea, the normative claim of law is the claim that the law guides conduct by providing
its addressees with reasons for acting as directed (62). So far so good, but this explication only shifts
the need for elucidation from the normativy of law to the reason-giving nature of law. What does it
mean that the law guides conducts by providing reasons for acting? As we will see, the notion of a
motivating reason plays a crucial role in this connection. Therefore we need to pay some attention to
the phenomenon of reasons.11
4.1
Causal"reasons"
The notion of a reason plays not only a role in the normative disciplines, but also in discourses which
are not normative at all. Reasons are also used to explain things, such as the fact that the train was
late or the fact that the sun was eclipsed by the moon, and to predict events, such as a drop of the
price of government bonds in the stock exchange, or that a rope will break. All these examples are
examples of reasons in the sense of causes, causal reasons.
Another example of a causal reason is that the reason why I take the bicycle to my work is that I want
some exercise. Here my behaviour (an event) is explained by means of my mental state (my want of
some exercise plus the belief that taking the bicycle will lead to the desired exercise) which is
assumed to have caused it. On the one hand, this example is similar to the other ones: a reason is
adduced to explain an event, on the assumption that the reason is (part of) the cause of the event.
That the reason is a mental state does not change this, because it was (implicitly) assumed that
mental states can cause behaviour. On the other hand, this example is different, because its
plausibility depends on it that I consider the fact that it gives me exercise is a guiding (Raz 1975, 16),
or a normative (Smith 1994, 94) reason to take the bike to my work. This has to do with the fact that
mental states that are used to explain behaviour are usually motivating reasons.
4.2
Guiding"reasons"
Causal reasons for human behaviour will often be mental states. It is the belief that it is raining that
causes my motivation and intention to take an umbrella with me, and it is the fear that I might get
hurt that causes me to take safety measures when I have to walk on icy streets. These causal reasons
are in a sense special, because they hang together with a different kind of reasons, with guiding
reasons.
Guiding reasons are different from causal reasons in at least three ways. First, whereas causal
reasons can be reasons for anything that can be caused, including events which have no mental
aspect whatsoever, guiding reasons always relate to behaviour, be it that this category can be taken
broadly so as to include mental behaviour such as believing or deciding something.
11
My account in the following is based on the discussion of reasons in Hage 1997, chapter II (Of reasons).
Other treatments of reasons, especially in relation to the law, are Raz (1975) and Redondo 1999.
Second, if a causal reason is a reason for acting, it will by far most of the times be a mental state,
such as a belief, or an experience, such as hunger, anger etc. Guiding reasons are always facts, and by
far most of the times they are not facts about mental states.12 It is not the belief that it is raining that
is a reason for me to take an umbrella; it is the fact that it is raining which is such a reason.
Therefore, a person may have a reason to do something, even if he is not aware of it, and somebody
may be motivated (by a false belief) to do something, even if he has no reason to do it.
And third, causal reasons operate in chains of cause and effect, governed by causal laws, while
guiding reasons operate in chains of justification, governed by normative laws. So, apparently,
guiding reasons and causal reasons, even if they are reasons for acting, are ‘worlds apart’.
And yet there is a close connection between the two. The connection is the following: If a person P
considers some fact to be a (guiding) reason to do X, then the belief of P that this fact obtains
explains why P did X (if he did it), or predicts that P will do X. Suppose that Jane considers beautiful
weather to be a reason to make a trip to the mountains. Then Jane’s belief that it is beautiful
weather explains why Jane made a trip to the mountains, or predicts that she will make such a trip. It
is the mental state (the belief) that explains or predicts behaviour; it is the fact expressed by the
propositional content of this mental state (the fact that the weather is beautiful) which is the guiding
reason.
This relation between guiding reasons and motivating reasons is precisely what makes internalism
with regard to normative judgements so attractive. Beliefs about the presence of guiding reasons
tend to motivate believers to do what they believe they have reason to do, and that makes that
these beliefs explain behaviour, or help predicting it.
Jane’s belief that it is beautiful weather can only explain her trip if there is a general connection
between such beliefs and the motivation for such behaviour. Beliefs of the type [It is beautiful
weather] should normally cause mental states of the type [motivation to visit the mountains]. This
has nothing to do with reasons for acting in particular, but is an immediate consequence of how we
see causal relations. Such relations hold between individual facts or events, but must be based on
lawlike relations between types of events or facts (Hempel 1942 and Fay 1994).
4.3
Motivating"reasons"
I will call the contents of those mental states which stand in such a general causal relation to the
motivation to perform a particular kind of act motivating reasons. A motivating reason for doing A is
a fact, or rather a possible fact, the belief of which normally leads to the motivation to do A. In Jane’s
case the state of affairs ‘It is beautiful weather’ is a motivating reason for visiting the mountains.
Motivating reasons are like guiding reasons in that they are both facts. They are like causal reasons in
that their role is defined in terms of cause and effect. In particular from an internalist point of view,
such as view d mentioned in the introduction,there must be a close connection between motivating
reasons and guiding reasons. It seems weird if a person sincerely believes that he has a guiding
reason to donate to famine relief, and does not even feel the beginning of a motivation do do so.
Still the relation between explanatory reasons and guiding reasons is not straightforward. It is for
instance not the case that if the belief that F normally motivates a person to do A, facts like F are for
this person guiding reasons to do A.
12
An example of a guiding reason which is a mental state is the fact that somebody has grief is a guiding
reason for consoling him.
To begin with, a fact can only be a guiding reason if the person for whom it is a reason knows that it
functions as a guiding reason. Suppose that seeing a commercial for beer tends to motivate me to
drink a beer, but that I do not know that this connection exists. Then the fact that I see such a
commercial is not a guiding reason for me to have a beer.
Moreover, a fact can only be a guiding reason for a person if this person somehow approves of it. (I
am deliberately vague here.) For instance, if I know that seeing commercials about beer tends to
motivate me to drink beer, but wished that this were not the case, I do not consider the fact that I
see such a commercial as a guiding reason for drinking a beer. If being thirsty motivates me in the
same way, and if I have no objections against it, then arguably I consider being thirsty as a reason for
drinking a beer.
However, even if know that I am being motivated by a particular kind of fact or event and if I approve
of being thus motivated, this might still be ‘wrong’. One might argue that, if I were wise, I would
disapprove of being motivated to drink beer if I am thirsty, and that this shows that my disposition to
be motivated, even if I approve of it, does not show that being thirsty is a reason for me to drink
beer. I only think it is a reason, but I am wrong. Real reasons can stand the scrutiny of critical
investigation, and the unhealthy effects of drinking beer, one might argue, make that my disposition
cannot stand such scrutiny and this shows that I do not have a real reason to drink beer when I am
thirsty.
4.4
Foundationalism"
This line of argument makes sense. Apparently it may be the case that a persons tends to be
motivated by particular state of mind, approves of that, and therefore believes that he has a reason
to do something, but is nevertheless wrong. It may be this insight which makes authors like Bertea
reject the idea that guiding reasons and normativity can be defined in psychological or sociological
terms. It would also be this reason which makes them reject a ‘reductionist’ analysis of normativity
and the acceptance-based view of it held by inclusive legal positivists. Are they right in doing so, or
do they merely think that they have a reason for these rejections?
The beginning of an answer to this question can be found in the observation that the issue at stake is
whether guiding reasons and motivating reasons belong to completely different categories, the one
normative and the other psychological, and that the argument why this is so has to do with the
justification of guiding reasons. We will have a closer look at this justificatory issue to see whether it
can lead to the conclusion that guiding reasons and motivating reasons are fundamentally different.
Suppose that the government proposes to decrease taxes and justifies this measure by the reason
that it increases employment. This reason can be questioned in two ways. First it may be asked
whether a decrease in taxes really increases employment. This question concerns the truth of the
reason.13 And second, the question may be asked whether this fact, if it is a fact, counts as a real
reason for decreasing taxes. This is a question after the relevance of the alleged reason. Are the
effects on employment relevant for the issue whether taxes should be decreased (or raised)?
Because this paper deals with normativity, I will only focus on the second question.14
13
14
Actually it is not the reason that is true or false, but the sentence which expresses the state of affairs that
would count as a reason. The reason itself obtains or not.
However, in my opinion the justification of ‘factual’ isues is basically the same as that of normative issues
(Hage 2011a), so the following discussion would also apply to the question about the causal connection
between decreasing taxes and increasing employment.
A fact can only be a guiding reason for a position (e.g. the taxes should be decreased) if it is relevant.
If this relevancy is challenged, it can be justified by giving reasons. These reasons should normally not
only concern the relevancy of this particular fact for this particular position but the relevancy of this
type of facts for this type of position. Obviously these reasons should be relevant too, and it is
possible – at least in theory - to support this relevancy by the adduction of still other reasons. The
relevancy of these reasons may be challenged too, and …so on.
As this brief example illustrates, justification is burdened by a problem, which was vividly baptised
the Münchhausen-trilemma by Hans Albert, after the famous baron who tried to pull himself out of
the morass by his hairs. (Albert 1980, section 2) Because the relevancy of the alleged reasons in a
justificatory argument would need to be justified themselves, there seem to be only three
possibilities:
a. the relevancy of some facts are dogmatically accepted as true or justified; this variant is
called foundationalism;
b. the need to justify the relevancy of the reasons leads to an infinite regress, because the
relevancy of the reasons given to justify the premises also depends on reasons which need
to be justified, and so on …;
c. the reasons given in a justificatory argument are indirectly justified by the conclusion of the
justificatory argument; in other words the justification would be circular.
Clearly, Bertea did not intend to accept anything dogmatically (foundationalists always have reasons
why the foundation really can function as such), but it seems that he nevertheless took recourse to
the first strategy when he tried to found the normativity of law in human agency. Apparently it is
obvious that normativity requires agency and that agency requires reflection, autonomy and
rationality. Let me be clear, this is not to argue that reflection, autonomy and rationality are not
important for normativity. That is an issue I do not want to enter into. My purpose here is to point
out that Bertea, presumaby without realizing it, picked some starting points as ones which are not in
need of further justification anymore, and attempted to build his account of normativity on this
foundation.
4.5
From"points"of"view"to"foundations"
In this connection Bertea used a strategy which one encounters more often, namely to make the step
from the nature of a particular point of view to the foundation on which the standards of this point
of view are based. One example of this strategy can be found in a book by Geoffrey Warnock, The
Object of Morality (Warnock 1971). Warnock starts his argument by pointing out that the human
predicament is not very attractive, partly because of the limited sympaties which humans have for
each other’s interests. And then he writes:
‘Now, the general suggestion that (guardedly) I wish to put up for consideration is this: that the
‘general object’ of morality, appreciation of which may enable us to understand the basis of moral
evaluation, is to contribute to betterment …of the human predicament, primarily and essentially
by seeking to countervail ‘limited sympathies’, and their potentially most damaging effects.’ 15
15
Warnock 1971, 26. Italics in the original.
What Warnock does in this passage is to start from a view about the nature of morality (and since
morality is in his opinion purposive, this is also the object of morality) and end with a starting point
from which moral positions can be argued. This starting point is somehow above dispute, because
another starting point would not be moral anymore.
We seem to encounter a similar move in Kant, who starts his argument in the Grundlegung zur
Metaphysik der Sitten (Kant 1785, 393) by dogmatically assuming that the only thing which can be
held good without any reservations is a good will. This assumption seems to gain some respectability
if one sees it as the characteristic that sets of moral goodness from other kinds of goodness, such as
beauty, prudence or legality, to mention some possible alternatives. Morality would then more or
less by definition be based on a good will. And from this ‘definition’ it would ‘follow’ – by means of
an in my eyes dubious line of argument - that the foundation of morality is the categorical
imperative.
Bertea’s strategy is also similar, although he does not seek a foundation for morality but for practical
reason. His argument (171-175) runs as follows: Law has to do with deciding between courses of
action. Law governs action by providing reasons for it. And reasons cannot be separated from
reasoning, and since this reasoning concerns action, it is practical reasoning. Therefore the law
essentially belongs to the sphere of practical reason. This is the first part of the argument, that places
the law, given its nature, in the sphere of practical reason. The next part seeks to find a foundation of
practical reason in human agency; we already discussed that.
This approach, which moves from the nature of a particular point of view (morality, the law) to a
foundation for reasoning within that point of view, has its attractions, but is open to a line of
criticism that was well formulated by Philippa Foot (Foot 1978) : if the norms of a particular point of
view are derived from the nature of that point of view, one can still raise the question whether we
should act in accordance with that point of view. Should we really act morally? Or – in Foot’s
formulation – is not morality a set of hypothetical imperatives too? Does not morality only guide
those who want to act morally?
It will not do to say that morality is different from (other) points view because it deals with the
question what one should do all things considered. It will not, because it is either one of two
possibilities:
/
/
either morality is a point of view like others and possibly allows to derive its normative
foundation from its definition, but then its normativity is merely ‘hypothetical’,
or it is not such a point of view, and then it does not allow to derive its normative foundation
from the nature of the moral point of view.
The derivation of a normative foundation from the definition of a point of view is, at least in the
sphere of the normative, the only plausible option to make foundationalism work. In fact it might
work if one does not demand that the derived norms are ‘categorical’ in the Kantian sense. If,
however, one follows Kant and - in Kant’s footsteps – Bertea, in demanding categorical norms for the
normativity of morality respectively the law, the foundationalist track does not fly.
An infinite regress is obviously not a serious possibility to justify normative judgements. The third
alternative, if interpreted as a coherentist view of justification, theoretically works (Lehrer 1992;
Hage 2005, chapter 2), but is useless from a practical point of view because the coherent set that
needs to be constructed is infinitely large (Hage 2011). The Münchhausen-trilemma does not exhaust
the spectrum of possibilities, however. There is a fourth alternative, based on ideas from the so-
called Erlanger Schule (Schwemmer and Lorenzen 1973). As we shall see, this alternatives also makes
room for the possibility that guiding reasons are defined in tems of motivating reasons.
4.6
Is"there"̇"gap"between"motivating"and"guiding"reasons?"
Before continuing the argument about the justification of reasons and normative judgements it may
be useful to take a step back and consider how the justification issue relates to the presumed gap
between motivating reasons and guiding reasons. This gap between motivating and guiding reasons
can be seen as one of the many manifestations of the often assumed gap between is and ought.
Motivating reasons are defined in term of motivation, which is a psychological notion and easily
assumed to belong to the category of the ‘is’.16 Guiding reasons are not defined in psychological
terms (they are seldom defined at all), but are taken to belong to the realm of the ‘ought’ because
they determine what ought to be done. The relation between motivating and guiding reasons has
therefore direct impact on the alleged gap between ‘is’ and ‘ought’.
We have seen that somebody can be critical about the facts that tend to motivate him. Does one, for
instance, really want to be motivated by the fact that one is thirsty, to drink a beer? If one comes to
think of it and considers the effects of alcohol on one’s health, one might be motivated to get rid of
this motivating relation between being thirsty and drinking a beer. However, one may also be critical
about the relation between beliefs about one’s health and the consumption of stimulants. And then
one may also be critical about the facts that one finds relevant in this connection, …and so on. Here
we encounter again the regress that we found in connection with foundationalism, but now applied
to motivational connections instead of guiding reasons. Moreover, it is clear that any relation
between beliefs and motivations can be questioned. The temptation is then to conclude that no such
connection can be a solid ground for the motivation to act and that the ‘real’ foundation must
therefore be found somewhere else. This ‘somewhere else’ cannot be any motivational connection,
because it may be questioned whether this connection should be accepted. Apparently we cannot
base any decision about what to do on tendency to be motivated and ‘therefore’ there must be an
‘ought’ or ‘should’ outside the sphere of motivation which makes that we should do something.
If this explanation of the distinction between motivating reasons and guiding reasons is correct, the
adoption of guiding reasons and ‘oughts’ as separate categories that do not belong to the sphere of
the ‘is’ is the result of the search for a foundation for decisions about what to do. Since any
foundation in motivating factors may be questioned, we look for a foundation in something
fundamentally different, and the sphere of the ‘ought’ seems to provide us with it. The search for a
foundation can in this way be ended if one assumes with Kantians that it is possible to find a basic
ought in reason and humanity, with utilitarians that it can be found in happiness, or with Bertea that
it can be found in human agency. The alleged gap between ‘is’ and ‘ought’ and, in its continuation,
between motivating and guiding reasons, is then an outflow of epistemic foundationalism and the
assumption that motivational connections can never be a sufficient foundation for the relevancy of
other facts for decisions what to do.
16
As the reader may notice from the cautious formulation ‘easily assumed’ I am quite hesitant to write about
the distinction between ‘is’ and ‘ought’, because these two categories are seldom if ever defined well
enough to make the distinction clear.
4.7
Criticism"
The above section contains a very condensed argument to the effect that it is not possible to define
guiding reasons in terms of motivation. If such a definition were possible and if one assumes that
guiding reasons belong to the realm of the ‘ought’, the alleged gap between ‘is’ and ‘ought to
do’ 17would turn out not to be a gap at all, because what ought to be done could then in last instance
be defined in terms of the motivation to act.
It seems to me that the argument of the previous section makes a category mistake. It starts from
the assumption that any motivational link between a belief and an action may be questioned. This
questioning is a psychological phenomenon. It consists of wondering whether to accept or to reject
the motivational link at issue. At least in theory, the process of accepting or rejecting motivational
links and wondering whether such acceptance and rejection is based on a motivational link which
itself may be accepted or rejected, and so on, can continue infinitely. However, inifinite or not, we
are still talking about psychological decisions and dispositions, and not about an ought which is taken
to belong to a completely ‘different world’. The observation that there is no firm foundation in
motivation, because any motivational link may be questioned at most shows that the foundationalist
project has problems. It does not provide any reason why a psychological account of reasons must be
replaced by a normative account which presumedly cannot be reduced to a psychological account.
4.8
Constructivism"
If the search for a foundation for decisions what to do is the cause of postulating a separate category
of guiding reasons next to motivating reasons, an argument why such a source is unnecessary would
also be an (additional) argument why it is not necessary to postulate unreducible guiding reasons.
Such an argument can be provided on the basis of ideas from the so-called Erlanger Schule. The
traditional model of justification holds that some thesis (including a decision what should be done) is
justified if it can be derived (usually: deduced) from justified premises. This view of justification
presupposes a basis of justified premises, the justification of which does not depend on derivation
from other justified premises. The derivation of the thesis or decision is nothing else than making
explicit what was already implicit in the original premises.
The alternative view of justification that was proposed by Schwemmer and Lorenzen (1973),
members of the so-called school of Erlangen18, is that the basis of justification is assumed as long as it
is not brought up for discussion. For instance, it is possible to justify the decision to give money to a
beggar by the (presumed) fact that the beggar will use this money to buy alcohol and the goal to
promote alcohol consumption of beggars. As long as these premises are not questioned, the
justification succeeds and the decision to give money to the beggar is considered to be justified. It
remains possible, however, to question one or both of the premises, and when this happens, these
premises must be justified. Such a justification makes in turn use of premises that are temporarily
assumed, but that can always be questioned and brought up for discussion. On this view there is no
basis of justified premises. Which premises are needed for the justification depends on course of the
justificatory argument. This argument is not a timeless derivation, but rather a process that takes
place in time. It is constructed, and with the construction of the argument, the justification of the
17
18
I write here about ‘ought to do’ instead of a only ‘ought’ because many oughts have nothing to do with
action, and the present discussion only deals with action. A general account of the relation between ‘is’ and
‘ought’ should preferably be general, and not be confined to cases of ‘ought to do’. The beginnings of such a
general account can be found in Hage (forthcoming).
Cf. http:/ / de.wikipedia.org/ wiki/ Erlanger_Konstruktivismus. (Last consulted on February 16, 2011)
final thesis – final in the sense of the end of the argumentation chain, but not as the last step in time
– is also constructed.
Regarding reasons for acting this view brings along that it is not necessary to justify he relevance of a
motivating reason, unless this reason is questioned. Questioned by whom? First and foremost by the
person who tends to be motivated by the facts which are considered to be guiding reasons. If this
person has reasons, motivating reasons, to question whether a reason for acting should really be
considered thus, she must think about the issue, and this thinking consists in considering which
reasons plead for and against the behaviour guiding force of the questioned reason. Why is the fact
that the beggar will use the given money to buy alcohol a reason for giving him money? Would not
this contribute to the alcohol addicton of the beggar? The reasons why some facts should be reasons
can be questioned themselves too, and then it is possible to give reasons, for reasons, for reasons …
etc. The difference with the infinite regress is, however, that this process of giving reasons can stop if
there are no doubts anymore. In this connection it is the actual doubts that count; not whether there
would be reasons to doubt. Unquestioned reasons can stand by themselves, without foundaton in
still other reasons.
According to the above account, a guiding reason is essentially a fact the awareness of which tends
to motivate and of which the tendency to motivate survived any actual critical scrutiny. This account
of normativity has two important advantages. First, it clarifies the relation between guiding reasons
and the motivation of behaviour. The account is, to state it in modern terminology, internalist. And
second, it avoids the infinite regress and the dogmatization of assumptions that threaten
foundationalist accounts of normativity.
There is also disadvantage, because reasons for acting are not necessarily rational anymore in the
sense that they are only acted upon if they would survive any critical scrutiny that would be possible.
They only need to survive any critical scrutiny that has actually taken place.19
4.9
Social"normativity""
It is only natural that a persons tends to be motivated by the reasons he has to do something, at least
if he knows that these reasons actually obtain. For instance, if I am thirsty and being thirsty is a
reason for me to have a glass of water, this will normally motivate me to have a glass of water. In
other words, if reasons for a person are concerned, an internalist view of these reasons is
appropriate.
Apart from reasons for a person, facts which are considered by a particular person as reasons (for
acting), there can also be reasons for a social group perspective or from a point of view. For instance,
serious mental suffering is in the eyes of some individuals a reason to allow euthanasia, while in the
eyes of the community at large this may be different. Whereas reasons for persons may be defined in
terms of a disposition to be motivated, this is more difficult for reasons that count within a social
group. Assuming an individualist psychology, motivation is primarily a characteristic of individuals
and at most in a derived sense of groups. Nevertheless it is possible to define what counts as a
guiding reason in a social group. The following would be an attempt:
A fact is a guiding reason in a social group if it is a guiding reason for sufficiently many members
of this group and if sufficiently many members accept 20 that this is the case and that sufficiently
many members accept the same.
19
See in this connection also the distinction between dialogical and dialectical theories of justification in Hage
2005, 243.
This is not the place to go into details concerning group behaviour.21 Here I only want to point out
that the internalism, which is so natural in connection with reasons for a person, is not so natural
anymore for social reasons in the sense of reasons that are recognised within a social group. Not
every member of the group needs to consider the social reasons that are recognised by the group as
reasons for him or her personally. Lovesickness may not be recognised in the Netherlands as a reason
for self-mutilation, but a particular lovesick person may think differently about that, even if he knows
that his views are not generally recognised.
What holds for social reasons also holds for reasons which belong to a particular point of view.
Suppose that Kant were right and that it is unconditionally morally wrong to lie. Then a lover should,
morally speaking, not tell his girl friend that she is beautiful if he does not really believe this. For him,
however, the fact that telling her so would make her happier is a sufficient reason to lie a little. After
all, nobody gets hurt. The moral reason does not motivate him.22 This lover takes the external point
of view towards at least part of morality. Clearly if most people would not be motivated by moral
reasons, the moral point of view would not make sense and morality would not be a social
phenomenon.
A similar story can a fortiori be told about legal reasons. Given the law of the Netherlands, a judge
should legally order the deportation of asylum seekers with economic motives, but this does exclude
the possibility that in a particular harrowing case this legal reason does not motivate him at all even
though he knows what the law is. As Raz (1979, 153) wrote: legal judgements can be ‘detached’.
Again it holds that if most people are not motivated by legal reasons, the law does not make sense.
Or, to state the same thing differently, this society would not recognise law at all, or does not
recognise the rules of a particular system that pretends to be the law.23
5 Some"conclusions""
The nature of normativity is a topic that cannot be dealt with adequately in one paper. The above
account can therefore not offer more than a glimpse of an approach. Nevertheless, I will briefly
summarise some of the results that were (too) briefly argued.
1. The temptation to separate guiding reasons strictly from motivating reasons may be caused
by a combination of, on the one hand, an attempt to find a solid foundation for guiding
reasons and, on the other hand, the (Kantian) rejection of the possibility that such a
foundation can be found in personal characteristics such as a disposition to be motivated.
20
21
22
23
Acceptance here includes both the belief that something is the case and not having (decisive) objections
against this being the case. Notice that a fact can only be a guiding reason if it is accepted in this sense as a
guiding reason.
The reader who is interested in this topic can find a lot of literature on it. Tuomela 2007 is a good starting
point.
I assume that the moral reason is not merely overridden by the altruistic reason, but completely set aside
in the sense that it does not motivate at all.
This last demand boils more or less down to the Kelsenian demand that a legal system as a whole must be
by and large effective in order to exist (Kelsen 1960, 219) and the Hartian demand that at least the officials
of a legal system treat the ultimate rule of recognition as a social rule, meaning that they adopt the internal
perspective towards it (Hart 1994, 110 and 117).
2. By adopting a constructivist (instead of a foundationalist) theory of justificaton, it is possible
to define guiding reasons in terms of motivating reasons, thereby establishing a firm
connection between the sphere of normativity and individual psychology.
3. The connection between guiding reasons and personal psychology makes it evident that if a
person believes he has a guiding reason to do something, he will normally be motivated to
do so. In other words, this connection strongly supports internalism with regard to guiding
reasons.
4. This support for internalism only holds for personal reasons, not for social reasons or reasons
that belong to a particular point of view such as the legal point of view.
Concerning the second main question which Bertea answers in his book, namely whether the law is,
under certain conditions, normative in the sense that it provides reasons for acting, the answer must
be balanced. First it is necessary to distinguish between a positivist and a normative view of the law.
On the normative view of the law, the law is normative by definition, because the question what the
law is, is a specific variant on the question what should be done.
On the positivist view, according to which the law is by definition a social phenomenonon, the
normativity of law on this view is not obvious, but still there are reasons to assume that the law is
normative. Since the law has as one of its main function to prescribe behaviour, it provides its
addressees with legal reasons. So, if the law precribes to wear a red hat on Monday mornings
between 4 and 5 AM, the subjects of the legal system in question have a legal reason to wear such a
hat then. Whether they will be motivated to act accordingly is quite a different issue, especially if this
rule is not enforced. Moreover, whether this legal reason is also a guiding reason in the sense that
persons would reject it if they were not motivated to act on it is also highly dubious. It seems
therefore that on the positivist view of the law, the claim that the law is normative in the sense of
reason-giving is either obviously true (it gives legal reasons), or not generally true, because the law
does not always motivate, and people do not always reject it if they are not motivated by legal
reasons.
If we look at Bertea’s argument concerning the normativity of law, it is not clear whether he adopts
the positivist or the normative view of the law (or still some other view). Given his elaborate
argumentation, one would take it that he starts from a positivist view, because otherwise his
conclusions might have been more easy to arrive at. However, in his arguments he presupposes that
proper law, which takes the demands of human agency seriously, must be normative. Such a
presupposition can only be made if one starts from the normative view of the law. That Bertea starts
from the normative view seems to be supported by Bertea’s brief argument why the law belongs to
the ‘conceptual family of practical reason’. One might therefore argue that Bertea either made it to
easy for himself, or too hard. He made it too easy if he started from the positivist view, because then
he should have paid more attention to his conclusions that the law also belongs to the conceptual
family of practical reason and that proper law provides reasons for action. He made it too hard if he
started from the normative view, because then he would not have needed so much argumentation
based on human agency and its prerequisites.
Jaap Hage
Universities of Maastricht and Hasselt
e-mail: jaap.hage@maastrichtuniversity.nl
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