Abstract

Contrary to the "received" view that only natural law theorists can account for the normativity of law, in Part I of the thesis I argue that the issue of normativity does not even arise for natural law theory. It is an issue, however, for legal positivists. ;The main content of the thesis is my critical examination of three legal positivist accounts of the normativity of law, those of Kelsen, Hart and Raz. Through analyzing Kelsen's conception of juristic normativity, I argue in Part II that Kantian transcendental methodology may help Kelsen overcome the traditional jurisprudential dichotomy of fact and value, but it may also lead his theory to go beyond the boundary of legal positivism and force us to investigate the justificatory foundation of the normative force of law. In Part III, through examining Hart's conception of social normativity, I argue that while Hart's account of social normativity has its advantage of explaining the obligatory nature of law, it may force us beyond positivism to search for the moral or political foundation of the normativity of law. By discussing Raz's conception of practical normativity, I argue that while Raz's account has advanced our understanding of the normative nature of law, several basic theses constituting Raz's account are not really compatible with the central doctrine of his exclusive version of legal positivism. ;In conclusion, I suggest that the common problems explored in Kelsen's, Hart's and Raz's theories of the normativity of law are essentially associated with an unwarranted assumption of legal positivism, i.e., that the normativity of law can be and should be understood only in terms of the source of law as a social fact within an analytic jurisprudential inquiry. I further suggest that an adequate explanation of the normativity of law requires us to go beyond this assumption and to establish a higher social theory of law, a theory which can offer an intelligible explanation and justification of why law as a social fact must have its normative force in social practice