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Normative approaches to law (LAW-DS-NORMAP-24)

LAW-DS-NORMAP-24

Description

Normative approaches to law address questions about the law as it ought to be, as opposed to the law as it is. While they are sometimes criticised or dismissed as being ‘unscientific’, at the same time, however, legal scholars (including PhD candidates) are often tempted to offer recommendations for improving the law on a given subject, or to criticise a legal rule, doctrine, or court ruling, not merely for violating a higher legal norm (such as the constitution), but because they are ‘unfair’, ‘unjust’, ‘inefficient’, ‘suboptimal’, or ‘unpractical’. Such claims imply the availability of a standard for determining what amounts to a fair, just, efficient, optimal or practical law. It is the objective of normative approaches to articulate such normative standards and analyse their implications, as a result of which normative and evaluative claims about the law can become more than the mere subjective opinions of the author and make an actual contribution to our understanding and knowledge of the law.

There exists a broad variety normative approaches both to the law in general and to specific fields, such constitutional law, tort law, public international law, and tax law.

Some of these understand the law as being subject to more general moral or political principles and/or principles of justice. Prominent normative political theories include utilitarianism, liberal-egalitarianism, libertarianism, communitarianism, and civic republicanism. As to justice, social, distributive and corrective justice theories are among the ones most often applied to the law.

While these normative theories understand the law as implementing normative standards and principles coming from outside the law and existing independently of it, other approaches regard law’s normativity as immanent. Classical critical legal theory, for example, critiques the law on its own terms as not living up to its own normative commitments and aspirations.

A final set of approaches is more ambivalent about their normative commitments. These approaches discuss ‘legal imaginaries’, ‘legal imaginations’, and ‘legal utopias’ and are often founded in poststructuralism and sometimes to Marxism (the early, ‘humanist’ Marx). Their aim is clearly to transcend the here and now of positive law and insofar akin to moral and political theories of law. However, crucially, their normative aspirations are much deflated, sceptical of the power of reason, in particular its universalist tendencies, and openly intuitionist, when it comes to imagining a better future and law’s role in it. 

Although this seminar draws on abstract theory, its main objectives are very concrete and practical. The core aim is to assist researchers in making more articulate choices with regard to the (potential) normative dimensions and commitments of their own research projects. The first objective is to locate and recognise the normative aspects of one’s project: are some of my research (sub)questions normative, and if so, what would be a good normative approach to answer them? How can I best explain and justify the normative approach(es) I am adopting, especially when they are relatively far removed from mainstream legal scholarship?  How can my normative approaches be combined with the other approaches I am adopting in my project (eg doctrinal or empirical)?

No specific prior knowledge is required; all theories and concepts will be explained and thoroughly discussed. Researchers from other EUI departments are more than welcome.

Work required for credits: 
Readings, active discussion in class, one very short assignment (reflection upon normative dimensions own research project, max 1 page).

Reading list: https://readinglist.eui.eu/leganto/public/39EUI_INST/lists/2304818220008406?auth=SAML&idpCode=SAML_LEGANTO 

First, Second & Third Term: registration from 26 to 30 September 2024
 

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