Law & Society Blog

Does the following sentence strike you as odd? “It’s a fact that the law says: you should pay damages to anyone whom you harm by negligently violating a legal duty.” If you are like me, you will answer: yes and no.

First, there is nothing odd about that sentence if you are reading a guidebook for tourists explaining US tort law. Looking from the outside, like a sociologist or guidebook author, what the law says or doesn’t say is a fact, just like “The capital of West Virginia is Charleston.” In America, we are so familiar with this external perspective (or the perspective of a second-order observer), because we are brought up on it from the beginning. This is Holmes’ bad man: “Don’t tell me what I should or shouldn’t do, tell me what the law is, and what will happen to me if I do as I please,” says the bad man and looks at the law from the outside, like a bystander, and not from the inside, like a participant who seeks guidance of conduct (”What should I do?”).

Here is the odd thing now: We are so used to speaking of the law in factual terms, that we are losing sight of the normative character of law. This may just be loose talk, but think back how many times you hear people speaking as if it is a fact that murder is illegal, but it is a norm that “you should not kill.” Once you phrase it as a norm, using should or ought, people think you must be talking about morality. But of course there is a legal norm also that says “you should not kill.” It is only a different way of saying “murder is illegal.”

Most of us agree that law and morality can be separated and many believe that they should be separated. If law consisted of facts and morality consisted of norms, they wouldn’t mesh. Natural law theories wouldn’t make sense: law and morality could not be other than separate, since facts and norms (or values, if you prefer) are separate and different things. Kelsen makes this point clearly when he distinguishes legal norms and moral norms (which may overlap but are distinct). In fact, Kelsen’s Grundnorm can be seen as nothing but the normative principle, the statement that the law, even though separate from morality, is imbued with normativity: that law consists of “oughts.” Logically, the statement “It’s a fact that the law says: you should pay damages to anyone whom you harm by negligently violating a legal duty” is equivalent to “You should pay damages to anyone whom you harm by negligently violating a legal duty.” Norms have no existence in the real world, and their normativity is their only “existence.”

The deeper question is: should law guide conduct? The citizen faced with alternatives for action needs a legal norm, which states “you ought to do A, you ought not to do B.” The image here is that law becomes part of the decision by supplying a decisional norm. The judge is in a similar role, the role of first-order observer, when when he tells the defendant: “You should not have caused harm to the plaintiff negligently. You should pay damages.” Our tendency to overlook this normative character of the law derives from at least two sides: from realism, which regards the judge not as someone to whom norms are addressed but rather as someone who consumes breakfast, and from law & economics, which considers incentives and disincentives to rational actors rather than oughts and ought-nots addressed to citizens.

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