The issue of normativity and the methodological implications of interpretivism II: the distinctive normativity of law

The article is the second part of an analysis that seeks to clarify the distinctive normativity of law, as it is reflected in the legal systems of constitutional democracies. It explores the ability of interpretive theories to capture the conceptual characteristics of the normativity of law. The article argues that it is its institutional character that makes the normativity of law distinctive. The normativity of law must be construed as a form of institutional normativity. The analysis of the institutional character of legal norms revolves around the idea of obligations. It implies that the distinctive normativity of law builds on normative guidance by authoritative institutions. The ability of the law to provide normative guidance is explained in terms of three types of reasons: moral reasons, compliance reasons and response reasons. An implication of this insight is that moral legitimacy is constitutive of the normativity of law. The article concludes with an exploration of the dimensions of moral legitimacy in law, and the way the interplay of the justificatory background to normative claims and the institutional features of law make false normativity in law possible.