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Shiavault - a Vault of Shia Islamic Books The Varieties of Normativity: an Essay On Social Ontology I. Hart and Soft Positivism We first set the stage for our more detailed treatment of Searle’s views on normativity with a discussion of Hart and Rawls.

The work of Hart, especially, forms part of a famous debate between natural law theorists and legal positivists, a debate which reveals that the question of the ontological status of laws has historically been linked to normative issues of moral philosophy.

Natural law theorists affirm that immoral law is not law; that is, they believe that the ontological status of laws is determined by their relation to morality, in accordance with the famous motto: “ Non videtur esse lex quae justa non fuerit ”. Legal positivists, on the other hand, insist that law is law independently of whether or not it is moral.

According to the classical legal positivism of John Austin, for example, the issue of the legal status of law is an entirely empirical affair, to be established primarily through the determination of pedigree and enforceability. Was the entity or institution created and maintained in existence in accordance with the right sorts of rules? Is the entity such that the state can coerce people into complying with it?

According to Austin, we are to understand the nature of a legal system by starting out from the case of someone forcing someone else at gunpoint to hand over his wallet. The normativity of the law differs from the normativity of the highway-man only in this: that the law normally functions on the basis of threats alone; only in extreme circumstances is it necessary to bring guns into play. In The Concept of Law , Hart deploys a sustained attack on traditional legal positivism.

His criticism of Austin is both elegant and persuasive.[^4] Hart himself still defends a positivistic conception of the ontological status of the law, but he rejects traditional positivism, above all because of its superficial treatment of rules. The rules the gunman imposes upon his victim - “Hand over your wallet”, “Don’t do anything stupid” - are all of the same type: they demand certain sorts of conduct.

The law, however, operates on the basis of two types of rules, which Hart calls primary and secondary. Primary rules are duty-imposing; they demand conduct in just the way in which the gunman’s actions do. Secondary rules are power-conferring; they make certain sorts of situations possible - they are rules about rules.