roots of legal normativity

8/13/2019 Roots of Legal Normativity

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belongs to the former camp, at least as regards practical necessitation (im-peratives) of both the hypothetical and categorical kinds, i.e. being obliged toact or to refrain from acting in certain ways, and being obligatedor boundto fol-low or to avoid certain courses of action. Roughly speaking, I follow Kant in thematters so far discussed. I will now make a stab at presenting this kind of positionmore formally, without worrying further about the extent to which I am represent-ing Kant. Representing Kant is not my objective; talking about norms of actionand obligation is, with special attention (after a while) to legal norms. So first letme offer an account of being obliged to act:

sis obliged to a(in circumstances c) =def.: From the point of view of some sys-tem Vof values or goods, aand only ais logically open to sas a course of action(in circumstances c)11;

and correlatively,s is obliged not to a(in circumstances c) =def.: From the point of view of somesystem Vof values or goods, ais not logically open to sas a course of action (incircumstances c).There are a number of things that must be said about these proposed defini-

tions.First, ss being obliged refers to an objective condition of s and not to a

subjective condition. That is, smay be obliged to awithout thinking or recogniz-ing that he is. He may, for example, subscribe to a system V, but not realize thatfrom the point of view of V, aand only ais open to him as a course of action. Hemay not realize, for instance, that the airline is on strike, and thus that if he values

getting to Nice today, he is obliged to take the train. Again, smay not accept V. Itmay be that if he values winning the chess game, he is obliged (in the sense de-scribed) to castle now; but he may not care about winning the chess game and sonot be obliged to castle. Conversely, smay feel or suppose that he is obliged to awhen in fact he is not. He may, for instance, accept Vand think falsely that fromthe point of view of V, aand only ais logically open to him as a course of action.

Second, these definitions make being obliged V-relative. What sis obliged todo from the point of view of V, he may not be obliged to do from the point ofview of some other system of values. This relativity is independent of any systemof values that he happens to hold. Thus, in our previous example, we may saythat the chess player is V-obliged to castle, where V is a system within whichwinning the chess game is a good thing. But there will be other value-systems(e.g. the one to which the chess player subscribes, in the example given) with re-spect to which he is not so obliged.

11In an unpublished paper, Law and Morality: On the Ties That Bind (first presented byinvitation at a Ratio Juris seminar, held in Bologna on 15 March 1996, under the titleMy View on the Relationship Between Law and Morality), I distinguish between value-obligation, which is what is spoken of here, and rule-obligation. In the present paper,rule-obligation is not further discussed.


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Third, in continuation of the last point, it is important in each case to refer toa systemof values or goods, within which, presumably, the goods or values areprioritized or weighted. For despite the V-relativity of being obliged, we do wantto be able to say what sis actually obliged to do (in a given set of circumstances)from a certain personal perspective (whether or not subscribed to by s); andunless such a perspective considers goods and values systematically, such ques-tions will go unanswered. We would get instead only an endless run of hypotheti-cals12: Is sobliged to take the train? Well, if getting to Nice were the wantedthing, then, yes, hed be obliged to take the train; but if getting to La Bouexiere

were the wanted thing, then, no, for no train runs by there and hell have to drive;however, if he isnt concerned with traveling at all, but is looking for a goodmeal, then he has only to walk out the door and turn left, no train again; but if thewanted thing is running into Julie, hell be obliged to take the train to Paris, forshell be on that train later on; and so on.

Fourth, there are many situations in which there is no awhich is the only ac-tion logically open to an agent from the point of view of some system of valuesV. Normally, agents have plenty of options. If the airline is not on strike, smayperhaps get to Nice either by flying or by taking the train. So even if he valuesgetting to Nice today, he is neither obliged to take the plane nor obliged to takethe train. He may, however, be obliged to do one or the other. We may say, then,that agents are normally obliged only to choose some course of action fromamong a certain set of alternatives.

I do not take any of these things to be disadvantages of the proposed defini-tions; rather the reverse. I think that we need to understand what it is to feel orthink oneself to be obliged (subjective obligation) by reference to what it is (inthe objective sense) to be obliged. The V-relativity of being obliged simplystresses what Kant called its hypothetical character. It is an advantage of thesedefinitions, in my view, that they bring out this fact (as I consider it) of relativity.It is again an advantage, I think, to see that a course of action can be seen as hy-pothetically necessary (actually, and not onlyprima facie) only from a systematicvalue perspective. And lastly, it is valuable to realize (as Kants own discussionhinders us from doing) that one is rarely obliged to follow any single course ofaction.

Since the proposed definitions describe being obliged as an objective condi-tion, it remains to connect up ss being obliged to a with ss having a subjectivemotiveto a. This seems to me not too difficult to do. A person who is V-obliged

to a, in the sense defined, is not necessarily motivated to a. And he may likewisebe motivated to a, while being obliged not to a. On the other hand, if he con-sciously subscribes to a certain V, and believes that from the point of view of V, aand only ais logically open to him as a course of action in the circumstances in

12Perhaps these areprima facieobligations; but very weak and uninteresting ones.


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which he finds himself, then this state of mind constitutes a motive for him to a.It would not necessarily follow, of course, that he as, for any number of reasons;but probably we can say that he will a, other things being equal. The state ofmind in question is here understood as ss supposing himself to be obliged to ainthe circumstances in which he believes himself to be.

Normally, let us notice, when we say that swas obliged to a, it is assumedthat sin fact ad13, that he did so for the reason that he subscribed to some Vandsupposed that from the point of view of Vthat aand only awas logically open tohim as a course of action14. So, swas obliged to a carries with it a number of

important conversational implicatures concerning ss state of mind. It was theseimplicatures which led Hart to conclude that when we say that someone wasobliged to do something, this is

often a statement about the beliefs and motives with which an action is done:B was obliged to hand over his money may simply mean, as it does in the [case of his being confronted by a gunman], that he believed that some harm orunpleasant consequences would befall him if he did not hand it over and hehanded it over to avoid those consequences15.This is fair enough; in essence, I am agreeing with it here. But Hart has no other,

or further, account of being obliged. We are thus left with his idea that thestatement that a person was obliged to obey someone is a psychological one re-ferring to the beliefs and motives with which an action was done 16. By contrast,my account of being obliged does not refer to beliefs and motives, but to values andtheir implications in a given set of circumstances; it is not, on my account, a psy-

chological concept at all. In my opinion, Hart took the normal assumptions attach-ing to a concept for parameters of the concept itself. But the normal implicatures aredefeasible in context and can thus be seen for what they are.

4. So much, for the moment, for being obliged. Let us now turn to an accountof having an obligation to act: If we follow up on the Kantian suggestions madeearlier, and if we hope to provide an account which parallels the account of beingobliged that we have just considered, it seems that we will have to make room forvalues or goods of a special kind: those whose status as goods is not dependentupon their being wanted but is in some sense intrinsic to them. These are thingsthat we ought to value, whether or not we do; and things towards which it is ap-propriate for us to have an attitude of respect, as opposed to desire or fear. Let us

13Cf. Hart, Concept, p. 81.14Or, in the case of a present situation: normally assumed that swill in fact aand will doso for the reason that he subscribes to some Vand supposes that, from the point of view ofV, aand only ais logically open to him as a course of action.15Concept, p. 80.16Concept, p. 81.


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call these essential goods or values. On the roughly Kantian position developedhere, unless it is possible to provide a philosophical place for goods of this kind,it will not be possible to provide an account of having an obligation or beingbound, as opposed to being obliged. And so, if we are interested in bindingnorms imagining that there are such and that at least some legal norms are ofthis kind , our account of such norms will be rooted in whatever account we cangive of essential goods or values.

The general formula proposed is this:shas an obligation to a(in circumstances c) = def.: From the point of view of a

system Veof essential values or goods, a and only a is logically open to sas acourse of action (in circumstances c).Correlatively,shas an obligation not to a(in circumstances c) = def.: From the point of view ofa system Veof essential values or goods, ais not logically open to sas a course ofaction (in circumstances c).Now most of the observations we made earlier about being obligedapply here

as well: Having an obligation is here described as an objective, non-psycho-logical condition of s. Even with regard to some particular obligation, we are in-vited to consider essential values from a systematic perspective, and not just oneby one. Typically, more than one specific course of action will be logically opento sfrom the point of view of Ve, so an agent will be bound only to choose oneway of acting from a set of alternatives. And so on. But what of Ve-relativity? Wesaid earlier that the fact that being obliged was always relative to a given system

Vof values or goods was a reflection of the hypothetical character of this form ofpractical necessitation. But in the present case we were hoping to capture thenon-hypothetical character of being bound or having an obligation; and thatwould seem to imply would it not? that being bound should not be Ve-relativein the way that being obliged was V-relative.

Well, the definitions just proposed do make having an obligation Ve-relativein the sense that being bound is said to rest upon a system Veof essential valuesor goods. But in the case of the V-relativity of being obliged, there is the omni-present possibility of many different V-systems: What sis obliged to do from thepoint of view of a certain V, we said, he may not be obliged to do from the pointof view of some other system of values. So we may ask in the present case whe-ther there is likewise more than one system of essential values or goods. And theanswer to this question must evidently be no, if we hope to use our definitions tocapture the non-hypothetical character of being obliged. Perhaps alternative sys-tems of essential values could be described, but that would not show that suchalternative systems actually existed. If there is only one actual system of essentialvalues and goods, then being bound, although Ve-relative in a certain way, wouldnot be Ve-relative in the way that being obliged was V-relative. For if, in a certainset of circumstances c, aand only ais logically open to sas a course of actionfrom the point of view of a system Veof essential values or goods, then there willbe no other evaluative point of view with regard to essential values, that is


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from which some alternative course of action would be logically open to s. Eitherswill have an obligation to ain circumstances c, or he will not. Thus, we may notknow quite how to characterize essential values or goods; and we may not knowhow to justify the proposition that there are such goods and values; but we cansay that if there is to be any point to recognizing them, there must evidently beonly one system of such values.

But here it might be objected that surely there mustbe alternative systems ofessential goods and values, if there are any such values at all. For let us imaginethat human life is an essential value: it is surely an obvious candidate. Now, it

might be argued, Jones life is an essential good for Jones (I mean here not thatJones thinksof his own life as being essentially valuable to him, for he may not; Imean that it really isessentially valuable for him, whatever he may think). But, itmight be added, Joneslife may not be an essential good for Smith. Or at least itmay be less valuable for Smith than for Jones, and this would already yield dif-ferent systems of essential goods or values.

If there is an answer to this, it has got to be, I think, that Jones life is not, assuch, an essential good. Essential goods and values will all be generic: independent,as goods and values of this kind, from any individual instantiation 17. So, human lifemay be an essential good, but Jones life will not be. Knowledge may be an essen-tial good, but my knowledge about the composition of the moon will not be. Happi-ness may be an essential good, but my happiness will not be. We should note thatindividuals may nevertheless be the beneficiaries of the obligations which rest uponessential goods; for if human life is an essential good then presumably my life,along with Jonesand Smiths, is not to be trifled with, for it is an instantiation ormanifestation of this good. Indeed, in this sense we may say that an individuals lifeis essentially good or valuable, and there will be an important point to saying this;but we are nevertheless not to say that what is thus essentially good is an essentialgood. A system Veof essential values or goods will thus, on this account, be an or-dering of generic goods; and the objection just considered does not give us any rea-son to insist that there must be more than one such ordering 18.

In order for our account to appear plausible as an account of being bound, wewill evidently have to make the additional claim that essential goods and valuesare in an important sense incommensurablewith ordinary, non-essential goodsand values. Otherwise, the fact that from the point of view of a system Veof es-sential values or goods, aand only ais logically open to sas a course of action(in circumstances c) would not close the question as to what is practically neces-

17This point is related to Alan Gewirths idea about generic consistency, cf. his Reasonand Morality (Chicago: University of Chicago Press, 1977). But I believe that, with re-spect to Gewirth, I reverse the order of explanation.18Of course, nothing said here yet excludes by argument the possibility of alternative sys-tems of essential values or goods; I have only sought to make plausible, in the face of afairly obvious objection, that such a system might well be unique.


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sary for s. The point of view of Vemight always be compared on an equal footingwith the point of view of some system Vof non-essential goods or values. Whatis necessary from the former point of view would then be seen as not necessaryfrom the latter, and what is concluded from the point of view of V could con-ceivably overweigh what is concluded from the point of view of Ve. It is true thatan agent may always consider what he is to do in a given situation from these dif-ferent perspectives. But in order to capture the notion of being bound, it will haveto be maintained, I think, that the two perspectives do not yield conclusionswhich can be weighed against one another on a common scale. Essential goods

may perhaps be weighed against one another in this way, and non-essential goodsweighed against other non-essential goods. But essential and non-essential goodswill be incommensurable. I will not pursue this important issue further here19.

It may seem that, despite all we have said, our account of having an obliga-tion is open to a criticism famously directed by H. L. A. Hart at John Austinstheory of obligation, which Hart labels the theory of coercive orders:

A orders B to hand over his money and threatens to shoot him if he does not comply[Hart says]. According to the theory of coercive orders this situation illustrates thenotion of obligation or duty in general. The plausibility of the claim that the gun-man situation displays the meaning of obligation lies in the fact that it is certainlyone in which we would say that B, if he obeyed, was obliged to hand over hismoney. It is, however, equally certain that we should misdescribe the situation if wesaid, on these facts, that B had an obligation or a duty to hand over the money20.Now the gunman in Harts example threatens Bs life, which even if not an

essential value is presumably a manifestation of such; and for this reason, nothanding his money over to the gunman is evidently an option closed to B fromthe point of view of essential values or goods. So it looks as if, on the theory pro-posed above, the gunman will cause B to have an obligation or a duty to handover his money. But this, Hart claims, is wrong; B is, to be sure, obligedto handover his money but it is not his duty that is, he has no obligationderiving fromthe threat to do so. Must not our account then founder on the same point asAustins?

Well, we should notice that Hart here overlooks the fact that a particular obli-gation is typically an obligation to someone, the recipient21rof the obligation22.

19I have treated this matter in more detail in my Norms and Values, a paper originallypresented at an international Journe dtude sur Normes et Valeurs held by the Centrefor Research on Logic and its History, University of Rennes I, 1 April 1995. This paper ispresently unpublished.20Hart, Concept, p. 80.21The recipient of an obligation is not the same as what is often called the addressee.The addresseeis the party who is obligated (or said to be such); the recipientis the partyto whom the addressee is obligated (or said to be obligated). As discussed later, a thirdparty (neither the addressee nor the recipient) may be the beneficiaryof an obligation.22This involves a deliberate simplification. I have elsewhere maintained that, while many


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The recipient may be oneself, another, oneself among others, everyone, etc. Thereason why Harts counterexample to Austin seems so convincing is that B wouldsurely be misdescribed as having an obligation or a duty to the gunman; and thisis in fact what Austins theory requires, so Harts point is indeed telling againstthat theory. However, on the account proposed here, the obligation or obligationscreated by the gunmans threat would hardly be to the gunman; B would arguablyhave an obligation or duty to himselfto preserve his own life, and obligations tohis dependents, loved ones and friendsas well23. Once we specify the recipientscorrectly, we see (or at least make plausible) that the gunman can, through his

threat, create duties, though not to himself; so Harts example does not tellagainst the present theory.This does bring out, however, an important disanalogy between being obliged

and having an obligation: the former does not have a recipient, the latter typicallydoes24. Therefore, having an obligation, although importantly related to beingobliged, is not well understood as a variety of being obliged. The recipient or re-cipients of any given obligation will be anyone who has a privileged interest or astake in the essential values in question in any given case 25. Insofar as a givenobligation is an obligation to someone, a recipient r, we might bring this into ourformulation, thus:

s has an obligation (to a recipient r) to a (in circumstances c) = def.: From thepoint of view of a system Veof essential values, aand only ais logically open to sas a course of action (in circumstances c, which include rs having a privileged in-terest in the relevant essential values).

5. Given what we have thus far learned or may claim to have learned aboutbeing bound or obligated, we may now go on to ask what it is to be bound by anorm. What we have discussed thus far are particularobligations: those we mayhave in (and which in important part derive from) particular sets of circumstances toperform individual actions. But a norm or at least a general norm, the sort of normupon which I wish to focus in the sequel has the character of a rule.

A general rule of this kind, even a binding norm, need not be exceptionless. I

of our obligations or duties are obligations tosomeone, we can also have obligations orduties with respect tosomething (e.g. works of art or natural objects) which are not dutiesto anyone. Austins theory requires the former; and this is also the sort of obligationwhich Hart is attempting to capture. So I here ignore the latter sort of duty, for the pur-pose of simplification; but see my Nttran sem skepna in Nttrusyn, Rbert Haralds-son and Thorvardur rnason, editors (Reykjavk: Sidfrdistofnun, 1994).23He might even have an obligation with respect to human life which was not an obliga-tion to anyone (see previous note).24Although in some cases, the recipient may be indefinite.25Correctly specifying the needed notion of interest would be a matter of some subtlety,and is not attempted here.


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have argued elsewhere that general norms typically have a certain scope a do-main outside of which they do not apply and a certain power, or strength withrespect to other norms; and I have argued in the same place that it is not alwayspossible to build a specification of scope or strength into the rule itself, which, asstated, may therefore exhibit a certain defeasibility26. I will assume here, withoutargument, that a binding general norm may be defeasible in this way.

We have thus far said that an agent is bound, or has an obligation, to act in acertain way in a given set of circumstances when that way of acting, and only thatway of acting, is logically open to him in those circumstances from the point of

view of a system of essential goods or values. The obligation derives from thesystem of values, or rather the way in which that system applies to particular cir-cumstances.

Now if we give such an account, the binding aspect of a general norm wouldseem also to have to derive from a system of essential values, given which onlycertain modes of action will be logically open to an agent. A general norm willmerely sum up, as it were, the forms of action which, from the point of view of asystem of essential values, are exclusively open to us or, in the case of bindinggeneral prohibitions, not open to us in a manner which is relatively independentof particular sets of circumstances. In essence, it is not the general norm whichbinds us, but rather the system of essential values; the norm merely reflects themanner in which we are generally bound by those values.

Thus, the Mosaic commandment, Thou shalt not kill amounts, on the ac-count given here, to a claim that killing is incompatible with, and thus excludedby, essential values, in a manner which is relatively independent from particularcircumstances. Or at least this commandment is grounded in, and depends for itsbinding force upon that claim.

6. But surely we cannot think that binding legal norms laws are merelysummaries of what courses of action are open or closed to us, in a circumstance-independent manner, from the point of view of a system of essential values orgoods. The legislator is not merely reportingor reiteratingour obligations; he ismakinglaw, and is binding us through his act27. How can this be done? If the ap-proach taken here has any merit to it whatsoever, we will have to say that it canonly be done by tying a positive rule (i.e. a rule which has been set) to a systemof essential values in some appropriate way.

I can think of at least two ways in which this can be done. The first way is to

26See my article, Defeating the Inference from General to Particular Norms, Ratio Juris8 (December, 1995) 3, pp. 271-286.27 I do not suggest here that the legislator can make whatever binding rules he wants. Ibelieve, indeed, that there are firm and important limits to what norms can be set that willhave the binding force of law. But this does not negate the present point.


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set a rule for action which is backed by a practice designed to bring non-com-pliance into conflict with a system of essential values: For example, a tyrantmight levy taxes and might institute the practice of killing the children, parents orloved ones of those failing to pay. The idea under discussion here is in most re-spects what is envisioned by those who think of the power of legal norms as co-ercive. But two things must be said which are not usually said by coercivists,and both of which are important. First, we have specified that the coercive prac-tice must bring non-compliance with a set rule into conflict with a system of es-sentialgoods or values, if the rule is actually to be binding. So, if a rule is set

forbidding overtime parking in downtown Rennes, and this rule is backed by apractice of levying a fine of 100 francs upon those who do not comply, then thisrule, although coercive, will not be binding; for there are no essential values orgoods which must be sacrificed for non-compliance. If one does not want to befined, one may indeed be obligedto comply with the rule; but one is not bound,or obligated, to do so; at least this is so if the force of the rule derives solely fromthe conditional sacrifice of a non-essential good. Moreover, it will not be appar-ent, if the fine is supposed to tell the whole story, why it would be inappropriateto decide simply to park overtime as often as one wanted and consider the fine tobe just a cost of doing business. The tyrants tax law is another story, for therenon-compliance creates a conflict with an essential good human life and one isthus obligated to pay the tax. The conflict with essential goods in this case is alsowhat would make it inappropriate simply to decide to absorb the consequences ofnon-compliance as a cost of doing business. But coercive theories generally donot make the distinction between essential and non-essential values in this con-nection, and thus fail to distinguish being coercively obliged from being coer-cively obligated.

But even if non-compliance with a set rule is brought, by artifice, into conflictwith essential goods or values thus creating the obligation to comply the resultwould not be the one sought by the coercivist. For legal obligations are supposedto be obligations to the body politic: to the state, to the people, to the prince, orperhaps to the law itself. But this is not what happens when a rule is coercivelybacked in the way here discussed. To continue with the tyrants tax law: onewould be obligated to pay the tax; but the obligation would be to ones parents,children and loved ones, and perhaps to oneself. It would not be to the tyrant, tothe state or to the body politic. These might be the beneficiariesof the obligation,but they would not be the recipientsof it. The point being made here is essen-

tially the same that was made earlier in replying on behalf of the present accountto Harts criticism of Austin.I take it, then, that the coercivist approach does not yield a satisfactory ac-

count of legal obligation or the binding force of law.However, there is a second way in which set rules might be connected up with

a system of essential goods or values so that they could be seen as binding in amore appropriate manner; and so that they could be seen, moreover, as binding


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the distinction between essential and non-essential goods is neutral betweenwidely divergent moral and metaphysical theories.

8. In the last section, I mentioned some important questions which are nottreated in this paper. For my present efforts are devoted mainly to mapping out aposition in such a way that we can see more clearly which projects have to bepursued by anyone who finds the overall approach tempting. But before closingthere is one further issue that I dowant to address. In 4 above, we described

essential goods as things that we ought to value, whether or not we do; andthings towards which it is appropriate for us to have an attitude of respect. Andthen we went on to define obligation in terms of goods of that kind. Now thismight well strike someone as circular, or almost circular: we define what weought to doin terms of what we ought to value. The puzzling notion of obligationseems to be explicated in terms of obligation.

To those antecedently persuaded that an ought can never be derived froman is, this should come as no surprise. But it may nevertheless appear that thethesis of this paper is ultimately trivial. I do not think that it is. What is true, Ithink, is that all oughts come down to rational necessitation what is rationallynecessary in some sense30 just as Kant thought. There are nevertheless differ-ences between hypothetical and categorical necessity, and between practical andtheoretical necessity31.

Now, when we say that there are things that we ought to value whether wehappen to value them or not, we are, I believe, relying upon a different variety or at least a different instance of rational necessity than that which pertains towhat we are obligated to do (the categorical necessity of a certain form of ac-tion). What we are saying depends upon the idea that there are certain goodswhich are really more valuable than the general run of goods and whose value isincommensurable with ordinary (non-essential) goods. These goods are goods inthemselves, not goods which depend upon anyones desiring or appreciatingthem. In short, the basis for talking about what we ought to value is the idea thatthere are essential goods. We can admit that there are such goods while at the sametime disagreeing, or being uncertain, about which goods have this special kind ofvalue; that is, we can see that something might really be good in this way withoutour realizing that it is32. Now it wouldnt make much sense to assert: that (1) xhasa certain value in itself (independent of our attitudes) which makes it superior to

all of the things that we value in the ordinary way (its value cannot be measured

30Note that I do notclaim here all all necessity comes down to rational necessity; in otherwords, I leave open the possibility that there are forms of necessity not aptly categorizedas oughts.31As Kant himself emphasized.32Or, we can think that something is good in this way when it is not.


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in terms of ordinary goods) and to go on to say at the same time (2) I have noreason to valuex. Somethings having value of this kind essential value isareason for valuing it, and if I recognize (or, less tendentiously, believe) thatsomething has essential value then I, myself, have a reason to value it (the beliefconstitutes such a reason). The necessity of valuing something that one ought tovalue it, that it is appropriate to value it, that valuing it is non-optional comesfrom the connection in reason between somethings having essential value andthere being a reason to value it. The argument to what one is obligated to do de-pends upon a different connection, namely the possibilities of actions that are

open to us, system Veof essential values or goods. I maintain therefore that theposition advanced in this paper, while it may conceivably be quite wrong, is nei-ther circular nor trivial.

Notice that there is no argument pertaining to non-essential values (here con-strued as attitude-dependent) parallel to that just given for essential values. Forone might very well happen to value or cherish something, say Coca-Cola, with-out thereby having any reasonto cherish it. One could not necessarily be faultedfor one day ceasing to cherish it, as one could be faulted for ceasing, or failing, tocherish an essential value. Non-essential values are optional for the individual,33as essential values are not.

This having been said, I close my present discussion concerning the roots oflegal normativity. If someone were to complain that this paper raises more ques-tions than it answers, he might well be right; but that will not distress me if atleast some of the questions are thought to be interesting and significant ones.

33There may be various important exceptions to this rule, but this appears to me to be thegeneral rule for non-essential values as it is not for essential values.

roots of legal normativity

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