Constructivism, Normativity, and the Rule of Law

Abstract

Why care about what the law has to say? It aims to guide our actions, but its grounds for doing so are not clear. Many will cite moral grounds: the law is good, we have a duty to follow it. Others will simply appeal to negative consequences that follow from failing to heed its commands. Here, I want to sketch out a answer to the question in the tradition of legal positivism by using the machinery of ethical constructivism. I will begin by outlining the history of the debate over legal normativity. I will then proceed to lay out what Sharon Street has characterized as restricted constructivism, or constructivism that solves one particular normative problem. Without attempting to lay out a complete theory, I will advance the notion that we can settle on three conditions for the normativity of law. Adverting to formal games, I aim to show that we can start with the practical rationality of citizens whose interests and moral views deeply conflict, go through this procedure, and get reasons for the citizens to comply with laws that satisfy the conditions. I conclude by examining several objections to the procedure and my preferred conditions.