The Normative Force of the Factual

1. Front Matter

   Pages i-viii

   PDF

2. Introduction

   • Nicoletta Bersier Ladavac, Christoph Bezemek, Frederick Schauer

   Pages 1-3

3. Georg Jellinek’s Theory of the Two Sides of the State (“Zwei-Seiten-Lehre des Staates”)

   • Oliver Lepsius

   Pages 5-28

4. Sein and Sollen, “Is” and “Ought” and the Problem of Normativity in Hans Kelsen

   • Nicoletta Bersier Ladavac

   Pages 29-43

5. Law as Fact and Norm. Georg Jellinek and the Dual Nature of Law

   • Matthias Klatt

   Pages 45-64

6. The ‘Normative Force of the Factual’: A Positivist’s Panegyric

   • Christoph Bezemek

   Pages 65-77

7. The Effectiveness-Legitimacy Conundrum in the International Law of State Formation

   • Andreas Th. Müller

   Pages 79-95

8. How the Facts Enter Into the Law

   • Clemens Jabloner

   Pages 97-110

9. The Fact of Norms

   • Michael Potacs

   Pages 111-120

10. Ex facto jus oritur

    • Alexander Somek

    Pages 121-134

11. The Many Forces in Law: Rational, Physical and Psychological Coercion

    • Jorge Emilio Núñez

    Pages 135-149

12. Legal Facts and Reasons for Action: Between Deflationary and Robust Conceptions of Law’s Reason-Giving Capacity

    • Noam Gur

    Pages 151-170

13. On the Alleged Problem of Legal Normativity

    • Frederick Schauer

    Pages 171-180

This book explores the interrelation of facts and norms. How does law originate in the first place? What lies at the roots of this phenomenon? How is it preserved? And how does it come to an end? Questions like these led Georg Jellinek to speak of the “normative force of the factual” in the early 20th century, emphasizing the human tendency to infer rules from recurring events, and to perceive a certain practice not only as a fact but as a norm; a norm which not only allows us to distinguish regularity from irregularity, but at the same time, to treat deviances as transgressions. Today, Jellinek’s concept still provides astonishing insights on the dichotomy of “is” and “ought to be”, the emergence of the normative, the efficacy and the defeasibility of (legal) norms, and the distinct character of what legal theorists refer to as “normativity”. It leads us back to early legal history, it connects anthropology and legal theory, and it demonstrates the interdependence of law and the social sciences. In short: it invites us to fundamentally reassess the interrelation of facts and norms from various perspectives. The contributing authors to this volume have accepted that invitation.

• Normativity
• Dichotomy
• Legal positivism
• Georg Jellinek
• Hans Kelsen
• Facts and norms
• Positivist view
• Analytical perspectives
• Shillong tacit knowledge
• Shibboleth of law

• Thémis Institute, Genève, Switzerland

  Nicoletta Bersier Ladavac

• Institute of Public Law and Political Science, University of Graz, Graz, Austria

  Christoph Bezemek

• School of Law, University of Virgina, Virgina, USA

  Frederick Schauer

Nicoletta Bersier Ladavac, Thémis, Centre d'Etudes de Philosophie du droit, de Sociologie du droit et de Théorie du droit, Geneva.

Christoph Bezemek is Professor of Law at University of Graz, Institute of Public Law and Political Science. His research focuses on comparative constitutional law, political and legal theory.

Frederick Schauer is the David and Mary Harrison Distinguished Professor of Law at the University of Virginia and Frank Stanton Professor (Emeritus) of the First Amendment at the Kennedy School of Government, Harvard University. He is the author of numerous publications on constitutional law, in particular on free speech, and on legal theory. He is a Co-Editor of Springer’s Law and Philosophy Library

Policies and ethics