Bix on the normativity of law

Abstract

Bix would like to see legal theorists abandon the currently common view that law makes moral claims. He favours instead, an account of law’s normativity along the lines of Hart’s account (and relatedly, Kelsen’s). I argue that in order to make a persuasive case, Bix would need to offer more to those who find a view like Hart’s wanting. It is not clear that Hart’s approach has the advantages Bix claims for it, and in any case, Bix does not acknowledge or address the view’s critical defects. For these reasons, I conclude, Bix hasn’t really shown how “a more deflationary /…/ understanding of the nature of law is tenable,” or how it “may in fact work better” than morality-focused understandings of law’s nature—at least not if we want to understand the normativity of law. I suggest that efforts to understand law’s normativity would benefit from taking into consideration discussions of normativity in contemporary metaethics.