Ratio Juris. Vol. 18 No.

1 March 2005 (6483)

On the Necessity of the

Interconnection between
Law and Morality*
GEORGE PAVLAKOS
Abstract. By taking issue with Robert Alexys claim to correctness, I attempt to cast
light on the nature of the necessity that pertains to the claim. With respect to it, I
argue that it should be understood as deriving from the metaphysical requirements
for normative knowledge in general. These requirements are shown to include a
general norm of autonomy which is a priori and necessary, and comprises a minimal
morality. The line of reasoning is compatible with discourse theory, but does not presuppose it; therefore more far-reaching conclusions can be drawn.

1. Law, Correctness, and Morality

In his Theory of Legal Argumentation Alexy argues for the thesis that law is a
Special Case (Sonderfallthese or SFT) of practical reason (Alexy 1986). His
argument comprises three parts: (1) that law is practical (i.e., pertains to
action); (2) that legal statements necessarily raise a claim to correctness in
the same manner that all practical statements do; (3) that, finally, law is
merely a special case of practical reason due to the limitations imposed by
precedent, procedure and other constraints that pertain to the systemic
character of law. Of these arguments the one that caused a heated debate
amongst jurisprudential circles was the argument from correctness. The
more so because Alexy, in a series of later papers (Alexy 1989, 1997, 1999)
and his Begriff und Geltung des Rechts (Alexy 1992), expanded this argument
towards including the thesis that there is a necessary connection between
law and morality. His argument in this case consisted of three sub* This paper integrates material from my Edinburgh doctoral thesis. For invaluable comments
I thank Robert Alexy, Zenon Bankowski, Emilios Christodoulidis, Carsten Heidemann, Neil
MacCormick, Emmanuel Melissaris and Nicos Stavropoulos. I am also indebted to an anonymous referee of this journal for helping me to considerably improve the structure and lucidity
of the analysis.
Blackwell Publishing Ltd 2005, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden 02148, USA.

Law and Morality

65

arguments: (a) legal language is open textured, therefore legal systems are
open-ended; (b) when this fact is conjoined with the claim to correctness, it
follows that legal reasoning necessarily refers to non-explicit practical and
moral considerations1 (this he calls the argument from principles); (c) finally
the claim to correctness applies equally to the imported standards to the
extent that they need themselves to be correct (put in other words, to refer
to a correct system of practical reason/morality)2. From these three subarguments it follows that law is necessarily connected to morality. Different
critics have put forward different arguments for rebutting this conclusion,
however it is possible to discern two general lines of refutation3: (i) that legal
propositions do not (or do not always) raise a claim to correctness; in this case
law cannot be deemed a species of practical reason, hence any connection
with morality fails a fortiori; (ii) that even if legal propositions raise a claim
to correctness, there is no way of specifying one correct morality that could
determinedly satisfy it.
Instead of trying to discredit the details of such critical moves,4 this paper
is going to offer a metaphysical account that aims to justify the claim to correctness in the light of some key assumptions regarding the prerequisites of
normative knowledge in general and the nature of law in particular.
In telling what I think is the complete story behind the claim to correctness,
I will argue that it derives from the more far-reaching thesis that knowable
legal propositions are correct and necessary. This thesis makes sense
against the background of the following thoughts: First that, more broadly,
knowable normative propositions are correct and necessary. Second that
correctness (of normative propositions) stands more or less for the conditions of normative knowledge (for present purposes I employ knowledge as the opposite of any mental state that fails to establish a certain
1

Although Alexy does not explicitly argue why practical, albeit morally neutral, considerations are not sufficient in curing open-endedness, and that instead morality has to be involved,
I think that the reason is fairly obvious: Open-endedness of legal systems pertains to all levels
of their normative authority. In other words not only are instrumental legal norms open-ended
(e.g., traffic rules), but also the norms that relate to the subject matter of morality (e.g., civil liberties etc).
2
Alexys argument is subtler than that, as he suggests that the stipulated practical/moral correctness is not external to the claim to correctness: In other words it is not the case that the
claim to correctness merely points at an abstract need for correctness which must be saturated
by discovering some carefully hidden, external to the claim, morality. Rather the claim already
anticipates the kind of correct moral standards it requires: These pertain to the environment of
inquiry in which practical statements are meaningful at all. As such Alexy identifies rational
practical discourses which are regulated by a complex network of pragmatic rules at whose
apex lies a general principle of universalisation. The practical thinness of this principle notwithstanding, it is still capable of establishing the binary code correct/wrong with respect to normative propositions (for a detailed discussion of the main insights and the rationale of
Discourse Theory see Habermas 1992a, 1992b).
3
It is along these lines that recently Bulygin advanced through the pages of this journal what
can be taken to be the most succinct critique of Alexys connection thesis (Bulygin 2000).
4
For detailed refutations of such critical moves see Alexy 1997, 2000.
Blackwell Publishing Ltd 2005.

66

George Pavlakos

connectionor matchbetween the mind and the worlde.g., beliefs, etc.).

Third that the conditions of normative knowledge depend on the availability of a special normative point of view (let me refer to it as the noumenal
point of view), that has two features: (a) it consists of a general norm of
agency, hence normative knowledge can be captured through the idea of
correctness of action; (b) it is a priori necessary, hence, it generates the necessary character of all knowable normative propositions. Finally, condition four says that the concept of normativity is more basic than the
concept of legality5 and therefore anything that applies to the former
applies a fortiori to the latter. From these four conditions it follows that knowable normative, and in particular legal, propositions are correct and necessary. In this context the claim to correctness is merely a succinct way to say
that correctness is an essential feature of normative knowledge in the light of
the noumenal point of view. Clearly the stability of the entire edifice depends
on whether the noumenal standpoint is available in the first place; arguing
that it is, will be the focal point of the paper. However the attempted proof
will be less the result of strict logical reasoning and more of relating the
aforementioned four thoughts to each other in a coherent way.
Part two of the paper opens by examining the nature of the necessity of
knowable normative propositions (as previously stated, if the noumenal
standpoint is available, then apart from correctness, also necessity becomes
an essential feature of known norms). Since the necessity of norms is not
under scrutiny in this paper, it is used as a convenient starting point. Besides
convenience, however, the notion of necessity carries with it a large amount
of reasonableness: This is argued on the ground that the necessity of most
of the norms we know is a posteriori, or else intertwined with fact and experience (metaphysical necessity). Cast in these terms the necessity of norms
is a very down-to-earth conception, not unlike the necessity of the laws of
science. Consequently the amount of metaphysical baggage it carries with
it is minimal and therefore should not be taken as begging the question with
respect to the noumenal standpoint. Part three suggests that the kind of
necessity that is attached to the norms we know requires to take on board
some amount of a priori knowledge. This is corroborated by demonstrating
the circularity of an analysis of the concept of normativity through a
concept of legality conceived of in descriptive or phenomenal terms. The
alleged circularity points to the need for a special standpoint of cognition
through which normative properties can be ascribed to portions of the environment to the effect of producing normative knowledgeat the same time
the anti-reductionist argument is sufficient for establishing the thesis that
normativity is more basic than legality. Part four sets off to specify the
a priori standpoint of normative cognition (or the noumenal point of view); this
5
In the present context normativity and legality are used as depicting the properties being
normative and being legal respectively.

Blackwell Publishing Ltd 2005.

Law and Morality

67

is achieved with the help of a transcendental argument that amounts to a

Norm of Autonomy (NoA) that ultimately makes the noumenal point of
view available and, along with it, the claim to correctness. Finally, part five
detects some important consequences of the thesis that knowable norms are
correct (and necessary) for legal norms and legal systems.
2. The Nature of the Necessity Involved in Normative Knowledge
In investigating the nature of the necessity of the normative propositions we
know, three possibilities need to be considered:
(a) Logical necessity. This is the necessity induced by the laws of logic. An
example of logical necessity is the proposition it is not the case both
that R is a rule and that R is not a rule. The necessity involved is
logical because it rests on the logical law of non-contradiction. Clearly
the necessity of normative propositions cannot be established merely
on the ground of logical laws.
(b) Conceptual necessity. Conceptual necessities are usually granted on the
basis of conceptual analysis in connection with the application of the
laws of logic. A simple species of conceptual necessity is the one connected with the proposition: It is not the case both that George is a
bachelor and that George is a married man. The necessity involved
here is not a logical necessity since the concept bachelor is not a logical
concept. Only a further analysis of that concept would amount to the
exposition of a strict logical necessity of the form presented under (a).
Propositions of that form are true in all possible worlds in virtue of
the laws of logic plus definitions, hence the conceptual character of
the necessity.6 Arguably conceptual necessity is still too demanding
for explaining the necessity involved in normative knowledge. The
reason is that conceptual necessity implies a strong a priori element
which cannot be consistently reconciled with the way we acquire
knowledge of norms in many cases. More than often, normative
knowledge is acquired a posteriori by taking into account aspects of
the environment that could not have been anticipated or exhausted
by conjoining laws of logic with definitions of concepts.
(c) Metaphysical necessity. This is the necessity traditionally connected
with claims about certain states of affairs rather than merely proposi6

Alexy (1989; 1992) seems to want to capture the necessity involved in the claim to correctness as constituting a conceptual necessity. Thus, normative (legal) propositions by conceptual
necessity raise a claim to correctness, along the lines of something like: [T]he claim it is not
the case both that p is a legal norm and that p does not raise a claim to correctness is conceptually necessary. Arguably, there is a difficulty concerning the availability of a conceptual
analysis of the concept legal norm through a definition that would contain the concept of
correctness, or any equivalent expression. To that extent it is perhaps better to try and build
the notion of correctness into normative knowledge, along the lines of this paper.
Blackwell Publishing Ltd 2005.

68

George Pavlakos
tions and whose necessity cannot (merely) be explicated in terms of
logical laws and/or definitions of the concepts they contain (Lowe
1998, 816). Take the example of the proposition water is H2O or
salt dissolves in water.7 These propositions are true in all possible
words,8 in virtue of a necessity based on ontological, i.e., in virtue of
how things really are,9 rather than formal or conceptual grounds.
Accordingly, the reason why water is H2O or salt dissolves in
water are necessary propositions, has to do with the way water and
salt are, rather than with some laws of logic. To that degree, metaphysical necessities seem to be knowable somewhat a posteriori, in
contrast with strict logical necessities that are, characteristically,
knowable a priori; hence, metaphysical necessities are, arguably,
depicted in synthetic rather than analytic propositions. However, even
if metaphysical necessity involves a posteriori knowledge, it is not
exhausted in that kind of knowledge. Not the least so, because the
whole point of metaphysical argument is to entrench the metaphysical boundaries of what is possible, in the space of which experience
will discover what is actual. Without the metaphysical demarcation
of the possible, experience alone is not in a position to determine the
actual (Lowe 1998, 16). The delimitation of those boundaries consists
in providing acceptable metaphysical principles which establish the
actuality of a certain state of affairs, and not in whether the propositions describing them entail merely logical contradictions (Lowe 1998,
12, 15). To that degree metaphysical necessity involves a combination
of a priori knowable principles and a posteriori knowable facts.10

In order to render the idea of metaphysical necessity fruitful in the present

context, two tasks need to be undertaken: first, to introduce an ontology that
pertains to norms11 (this will provide for the required normative facts that

Other examples include the claims: nothing is both red and green all over at the same time,
or the Morning Star is the Evening Star, etc. (Lowe 1998, 15).
8
For worlds that do not contain water, the proposition can be rephrased as for any x, x is
water if and only if x is H2O; then the initial proposition water is H2O turns out to be vacuously true in all worlds in which water does not exist (or, according to the rephrased sentence,
in the worlds in which nothing is water and in which, by the same token, nothing is H2O
Lowe 1998, 15).
9
Given that the subject matter is law, this statement should not be thought as constituting
a confusion of the category of Is with that of Ought. What I am merely saying is that it is possible to conceive of normative facts (as opposed to descriptive ones). Compare also with
footnote 7. I am indebted to Robert Alexy for prompting this clarification.
10
To that extent any metaphysical necessity will also be a logical/conceptual necessity in the
broader sense. See also the views of Robert Stern (Stern 2000, 5963), where he argues that transcendental claims fall into the same class with metaphysically necessary truths (however, this
author does not seem to distinguish between metaphysical and conceptual necessity).
11
For present purposes I will confine the discussion to some general points that pertain to an
ontology of norms. For a comprehensive discussion see Pavlakos 2003.
Blackwell Publishing Ltd 2005.

Law and Morality

69

can be known a posteriori). Second, to account for the a priori principles that
enable metaphysical necessity with respect to normative propositions. In
addressing the two tasks in order, it will become apparent that the principles that allow for the metaphysical necessity are the very norms that open
the possibility of an ontology of norms. To that extent the two tasks are intertwined.
An Ontology of Norms. Normative facts can be denoted through nominalisations of normative sentences when they are restated as that-clauses and
inserted in the referential schema: F refers to F. Consider for instance the
normative sentence promises ought to be kept; this sentence can be
restated as that promises ought to be kept and inserted in the referential
schema that promises ought to be kept refers to (the fact) that promises
ought to be kept (for a detailed discussion see Heidemann 1997, 30936).
Along these lines norms can be understood as depicting normative facts.
A posteriori Necessity. This recasting of normative facts suggests a clear
analogy between nomological propositions (laws) of science and normative
(i.e., action-guiding) propositions of law, morality and, generally, practical
reason, an analogy that is able to account, in an uncomplicated way, for the
a posteriori necessity of normative propositions in general. Take the proposition salt dissolves in water (Coulombs law). This is a necessary a posteriori proposition (Bird 2002): In any given world w, salts (and waters)
existence entails that salt dissolves in water, a fact depicted by Coulombs
law (of solubility). Admittedly the fact that salt dissolves in water supervenes upon a series of lower level facts pertaining to the various natural
properties of water and salt, which are depicted by numerous contingent
laws of science (for a detailed discussion see Bird 2002). However, the contingency of these lower level laws need not condemn our higher-level law,
i.e., Coulombs law, to contingency: Whenever salt (and water) exists, necessarily Coulombs law is at work. That said, Coulombs law, despite its
necessity, is not a priori knowable but, instead, needs to be discovered
through scientific observation.
Now the suggested analogy: Take the normative proposition tax-evaders
ought to be punished; this proposition depicts the fact that tax-evaders
ought to be punished. Without doubt this fact can be also taken to supervene upon numerous lower-order characteristics of the natural and social
environment that are depicted in corresponding laws of (natural or social)
science, without posing any threat to its necessary status: In any possible
world w with taxes and tax-payers, it is a fact that tax-evaders ought to be
punished. Indeed, here too, the higher-order norm tax-evaders ought to be
punished can be deemed necessary12 though not a priori knowable: that is,
12
This could be taken to signify a normative necessity, a term used often by Alexy to the dismay
of Bulygin (2000, 136). Bulygin remarks that somethings being normatively necessary (as
meaning obligatory) does not really make sense, since if something is necessarily true in all

Blackwell Publishing Ltd 2005.

70

George Pavlakos

it will require legal science to go to work before its being disclosed.

Perhaps the clearest demonstration of the a posteriori character of normative
propositions is to be found in the so-called hard cases: There the contingency
of the environment reveals new normative facts that can, in turn, be depicted
by normative propositions that are a posteriori, i.e., based on experience
rather than pure reflection (e.g., the principle no one ought to profit from
ones own wrongfrom Riggs v Palmer; Dworkin 1977, 234).
3. Metaphysical Necessity and a priori Knowledge
Be that as it may, a posteriori knowledge cannot sufficiently establish the
necessity of normative propositions. Unless some amount of a priori knowledge is postulated, the necessary character of normative propositions would
be put into question: As they lack the solid ontological outlook of hard
facts, normative facts cannot be recorded through our perceptual apparatus
in an objective way as, more or less, hard facts can. This lack of objectivity,
however, undermines the claim to necessity: In the case of any hard fact, say
the fact that salt dissolves in water, the necessity of the proposition that
depicts it, is granted on the basis of some objective data regarding the properties of salt and water. Hence in the case of empirical facts, the burden for
the demonstration of the necessity is to a large extent carried by the fact that
it is possible to record them through our perceptual apparatus in an objective way. This option is not available with normative facts. Here the issue of
objectivity needs to be argued for separately. It is for that reason that the
analogy between laws of science and norms of conduct breaks: Whereas
nomological propositions of science, even the necessary ones, are always a
posteriori, one must leave some room for a priori normative propositions, if
the objectivity of normative knowledge is to be preserved. Apriority generates objectivity, because what is a priori knowable is so in an objective way.
The Limits of Apriority. That said, not every normative proposition could
(or even should) be deemed a priori. Rather the idea of apriority refers to
possible worlds it does not make sense to make it obligatory (ibid.). I am inclined to believe
that this remark is beside the point for the following general reasons: The modal operator O is
anyway perfectly conceivable as meaning morally or normatively necessary (Girle 2000, 175);
what is implied in this case is that an action-guiding norm prescribes a course of conduct as
being obligatory universallyhence, in all possible worlds. Clearly the point of normative
necessity is not a point about truth. It is a point about autonomy. In other words normative
necessity refers to what is necessary from the point of view of autonomy, or morality; a rule of
the form close the door or leave it open, as in Bulygins example, is not expressing any form
of normative necessity because it is morally insignificant (what could be taken to be normatively necessary in this case is something like the norm: Arrange objects in the environment
according to the reasons you have). An alternative way to capture normative necessity is
the one employed here, when we represent norms as facts. In this case the necessity operator
appears to be postulating ontological necessity, hence to be about truth. However, as it is going
to be argued, this picture is possible only against the background of the metaphysical necessity of a norm introducing autonomy.
Blackwell Publishing Ltd 2005.

Law and Morality

71

those norms that constitute the conditions of normative knowledge: This is

the idea that the possibility of normative knowledge, in other words our
ability to register normative facts as distinct ontological entities, depends on
the availability of a priori normative propositions which constitute a distinct
standpoint of normative cognition.13 Furthermore, it should be borne in
mind that the standpoint of normative cognition (and, as a result, the a priori
propositions that establish it) will pertain to the knowledge of any norm that
is action-guiding: In the absence of a convincing reason for distinguishing
between types of agency depending on what norm is followed by the agent,
legal, moral, ethical and other action-guiding norms should all be understood as species of the genus practical norm. Alexy also mentions this commonness of the property of practicality and the implied idea of the
continuum of practical reason. In stating the first of three reasons for his
Special Case Thesis,14 he says that law is practical to the extent that it is
action-guiding (Alexy 1986, 26372). However, although practicality establishes something like the continuum of practical reason, it is still weaker than
the contention that law raises a necessary claim to (moral) correctness and
the concomitant necessity of the connection between law and morality. For
that, practicality needs to be supplemented by two further conditions. First,
the condition that the normative propositions that put together the standpoint of normative cognition are not morally neutral; this would entail that
not only law, but the entire domain of practical reason is answerable to
morality. Second, the already familiar condition that the norms that put
together the standpoint of normative cognition are a priori. Indeed if the
norms that create the possibility of normative knowledge, on top of being
morally coloured, also are a priori, then every practical norm will be necessarily linked with morality.
So much about what is needed for arriving at the necessity of the connection between law and morality. However, it is crucial to investigate
whether it is possible at all to meet these requirements. Let me briefly outline
the strategy that is going to be followed with respect of each of them, i.e.,
apriority and practicality/morality.
The requirement of apriority. This will be argued for in two stages. In the
first stage, it will be shown why it is inadequate, or even futile, to explicate
legality as a phenomenal concept whose content can be captured exclusively a posteriori, i.e., by empirically studying the environment. The radical
aporia of any understanding of legality in phenomenal terms will demonstrate, in the most powerful way, the need for introducing an a priori standpoint of cognition for normative entities. This will be introduced in the next
13

Apriority in this context is generated by a transcendental argument whose details are to be

found in the next section.
14
The other two reasons are the necessity of the claim to correctness and the restrictions
imposed by the legal system (Alexy 1986, 263f.).
Blackwell Publishing Ltd 2005.

72

George Pavlakos

part with the aid of a transcendental argument. This generates an a priori

norm of autonomy that creates the possibility of a normative standpoint and
enables the knowledge of normative entities.
The requirement of practicality/morality. This point cannot be addressed in
much detail here. However, a few remarks will suffice to indicate the lines
along which a tenable answer should be modelled. Two points are crucial
for establishing the requirement at hand. The first has to do with whether
legal norms fall under the same genus alongside all other action-guiding
norms. To the extent that there is no prima facie reason for distinguishing
between those types of action that comply to legal norms and those that
comply to moral, ethical, etc. norms, the burden of proof befalls anyone who
wants to sustain the distinction. The second point has to do with whether the
a priori conditions of normative knowledge are morally coloured. This is
a much more complex question. To answer it, it is easier to begin with practicality and then proceed to investigate its relation with morality. The
transcendental argument of the next section establishes that the a priori
conditions of normative knowledge are practical norms themselves: One of
the characteristics of any transcendental argument is that it aims to unveil
the presuppositions that make something intelligible from within, i.e.,
without deriving it from anything else. As a result a transcendental argument about the possibility of practical knowledge has to amount to items
that are practical norms themselves. Once practicality is there, the question
about the moral character of those norms can be tackled by relating practicality with morality. The success of an answer will depend on how thin one
understands morality. Norms of morality consist mostly of substantive or
comprehensive action-guiding sentences but are not exhausted in them.
True, substantive moral norms are a posteriori, depicted in synthetic propositions which are formulated within particular contexts. However, to the
extent that morality (or at least parts thereof) has universal validity, one has
to make room for a higher level of thinner universal norms of morality.
These can be deemed a priori knowable along the lines of a Kantian test of
universalisation. But if my basic contention that normative knowledge
requires apriority is true, then norms of morality, like all other norms, are
knowable on the grounds of a distinct normative point of view that consists
in a series of a priori necessary principles.
Now, there is a prima facie plausibility in identifying the two levels of a
priori norms; this is suggested by the conjunction of the two thoughts just
mentioned: namely, that, first, morality is the thinnest level of practical
reason, and, second, that the a priori norms that make normative knowledge
possible are themselves action-guiding. In other words it seems that both
kinds of norms are action-guiding, occupy the same level of thinness and
also are a priori. To that extent the most general norms of morality and the
a priori conditions of practical knowledge should be treated as identical.
Admittedly, one can reject such a thin conception of morality and instead
Blackwell Publishing Ltd 2005.

Law and Morality

73

argue that the level of the a priori conditions of normative knowledge is still
thinner than the thinnest possible level of moral norms. Any merit of such
a view notwithstanding, it does not really change much as it seems to be
pointing to a mere terminological difference. To make a real difference this
view would have to further argue that the thin level of normative cognition
is not action-guiding, as opposed to the level of norms of morality. On the
face of the transcendental argument that is employed in the next section,
I take this objection to be difficult, if not impossible, to raise. However, in
the case that the issue is merely terminological I am happy to abide by those
who use the term morality to depict not just normative requirements that
are embedded in thick cultural networks, but also the thinnest possible (i.e.,
universal) action-guiding norms.
4. Apriority and Irreducibility
One way to suggest that there is a priori legal knowledge is by refuting the
possibility to understand law (or legality) in non- or extra-normative
terms. This, in turn, is linked with the idea that description and prescription
are asymmetrical, that, in other words, description pertains to phenomenal
properties and generates knowledge that is a posteriori, whereas normative
properties can be depicted by (or are even intelligible within) normative
language which presupposes a significant amount of a priori knowledge.
Accordingly two things need to be argued for: first to address explicitly the
reasons for the asymmetry between the Normative and the Descriptive.
Second to argue that, insofar as the asymmetry is correct, legal knowledge
is (to a significant degree) a priori.
The Asymmetry Thesis. The asymmetry is pinpointed by the circularity of
any analysis of (the concept) normativity through a conjunction of
legality with other concepts, where both legality and those concepts are
conceived of in descriptive or phenomenal terms, or in other words, as depicting properties that can be registered by our perceptual apparatus.15 To establish circularity one needs to show that, however exhausting the conjunction
of legality with other descriptive concepts may be, one will inevitably
need to make reference anew to the concept of normativity in order to
explain laws action-guiding nature.
The opposite argument for the possibility of the analysis consists in the
claim that normativity entails legality but not vice versa; hence that

15

This is more or less the way positivist jurisprudence understands the relationship between
normativity and legality: The latter is assumed to be analysable in non-normative terms
(facts about the creation of laws or even empirically discernible rules of recognition) and therefore more basic than (i.e., conceptually independent from) the former. The most typical conclusion of this understanding is the thesis that law can be isolated from other forms of
normativity.
Blackwell Publishing Ltd 2005.

74

George Pavlakos

legality is conceptually prior to normativity.16 This would be explained

by the assumption that it is possible to conceptualise normativity as the
conjunction of legality with whatever must be added to it to yield normativity, as in the formula:
(a): Normativity = Legality + x.
Since the conjuncts are conceptually prior to the conjunction and since
normativity entails legality, it should be trivial that a legal rule R is normative if and only if (1) R is legal, (2) R complies with a series of criteria
under x,17 and (3) if R is legal and complies with those criteria, then R is normative. The force of the equivalence lies in the possibility to conceptualise
the factors whose conjunction with legality is necessary and sufficient for
normativity, independently of the latter. This is what the conditional
endeavours to establish. Were this possible, legality would be shown to
constitute a necessary but insufficient condition for normativity which,
when conjoined with some additional factors, would produce a non-circular necessary and sufficient condition for normativity. Then it would
follow that legality is a neutral concept that can be conceived of independently of normativity. Alas, this does not seem to be the case here: The
equivalence is incapable of establishing the desired conclusion, owing to the
circularity of the conditional employed in order to support the independence of legality; normativity reappears in (3); hence, it is not possible to
conceptualise the factor x independently from normativity. It follows that
a necessary but insufficient condition (legality) need not be a conjunct of
a non-circular necessary and sufficient condition (the conjunction of legality with x). To draw an analogy with colour: Though being coloured is a
necessary condition for being yellow, it is not possible to state a necessary
and sufficient condition for being yellow by conjoining being coloured
with other properties individuated without reference to yellow (Williamson
2000, 3). Neither the equation yellow = coloured + x nor the equation
normativity = legality + x need have a non-circular solution.
The reason for the failure of the analysis relates to the fact that normative
knowledge is not essentially phenomenal, i.e., it does not rest ultimately on
our perceptual apparatus. Instead, normative knowledge should be understood as falling under a distinct angle or viewpoint of looking at the environment (call it the noumenal point of view): Here legal properties are
applied to the phenomenal environment according to a complex network of

16

The reconstruction of the argument and the method of its refutation is inspired from a discussion of Timothy Williamson in respect to the relation between knowledge and belief
(Williamson 2000, 25).
17
These include psychological attitudes and other motivational states of the agents that are
accountable in descriptive/phenomenal terms.
Blackwell Publishing Ltd 2005.

Law and Morality

75

norms that are ultimately justified (or even exist) in the light of a general norm
of autonomy. Along these lines, legal phenomena can be captured merely in
normative terms, not due to any limitations of our phenomenal knowledge
(which, were we in the position to transcend one day, by, say, improving our
technology and observational methods, we would finally gain access to the
normative realm); but because the very possibility of normative knowledge
rests on ones switching into an altogether different standpoint of viewing
the world, the noumenal point of view.
5. Apriority and Transcendental Argument
If the asymmetry thesis is correct then a significant part of legal-as-practical
knowledge must be deemed a priori. The asymmetry thesis shows that an
accurate understanding of legal properties must make explicit the norms
according to which those properties are ascribed to portions of the environment. In doing so the lawyer is required to construct the normative point of
view as noumenal, or as being constituted on the grounds of a network of
norms that ultimately rest on a supreme principle of agency, in whose light
events in the environment make sense as tokens of agency, rather than
moments in a causal chain.
Transcendental Deduction in Kant. Probably the most classical example of
transcendental deduction is Kants justification of the ultimate principle of
practical rationality, the so-called Categorical Imperative (CI). In its initial
formulation, also known as the Formula of Universal Law, CI states:
Act only on that maxim through which you can at the same time will that it should
become a universal law. (Kant 1991, 84)

Kant takes this formula to be knowable a priori, that is via reflection on the
presuppositions upon which agents formulate the maxims (i.e., the concrete,
subjective principles) which guide their action. More specifically Kant says
that each time agents choose their principles for action (maxims) they should
want those maxims to become universal laws or, otherwise, they entangle
themselves into some sort of contradiction. One of the examples he offers
is the maxim promises should be kept; in complying with this maxim
one should want every other agent to abide by it. Conversely, one cannot
reasonably want people to break their promises, otherwise, one would
entangle oneself in a serious contradiction, given that the validity of that
maxim would entail that the object of promising, i.e., promises, contracts,
agreements, and so on, be annulled (Kant 1991, 846).
Disregarding the fact that Kant on several occasions declares as universalisable maxims that we would not accept as universal laws nowadays, the
point of his transcendental reasoning is clear: The norm that regulates the
validity of our practical principles (i.e., the Categorical Imperative) can be
Blackwell Publishing Ltd 2005.

76

George Pavlakos

known a priori through realisation that unless we presuppose it we will end

up committing ourselves to maxims that are self-contradictory. To that
extent contradictions seem to constitute the core of transcendental reasoning.
They are in a way the means for establishing the indispensable character of
the items that a transcendental argument intends to establish as
being knowable independently from experience, i.e., a priori. The difference
between Kants transcendental argument and the one that Alexy employs is
that the latter refers to the pragmatic presuppositions of the act of uttering
sentences/propositions that contain maxims, and what is claimed to be
a priori, on pain of contradiction, is a set of pragmatic rules that regulate the
performance of those utterances.
Let me now attempt to establish a link between Kants Categorical Imperative, as the most abstract principle of agency that generates the noumenal
point of view, and the thesis that normative propositions necessarily raise a
claim to correctness. In doing so, I will focus less on the context of the performance of speech acts and rather refer, in a more Kantian fashion, to norms
themselves. Here the necessity of the claim to correctness ends up signifying the conceptual impossibility of any piece of normative knowledge
independently of a Grundnorm of agency akin to the Kantian Categorical
Imperative. This will be the conclusion of a transcendental argument18 that
comprises six stages:
(a) we make normative statements or assertions.
This is the usual trivial starting point for any transcendental argument; it
simply states a fact that is more or less generally accepted;
(b) normative statements are about (or aim at) the correctness of (tokens
of) action.
The second premise attempts to state an equivalent expression for somethings being a normative statement which is trivial and therefore equally
indisputable;
(c) if normative statements concern the correctness of action then they
raise a claim to be correct standards thereof.
This premise introduces the claim to correctness. For the purposes of the
present reconstruction, this claim can be understood as a fact whose
18

My version of the transcendental argument draws some parallels to the Strawsonian argument discussed by Stroud (Stroud 2000, 136). A basic difference is, of course, that the argument discussed by Stroud refers merely to the knowledge of the external world, as opposed to
practical knowledge.

Blackwell Publishing Ltd 2005.

Law and Morality

77

necessity does not involve yet any a priori knowledgeinsofar it can be

compared with the necessity involved in the statement water is H2O or
salt dissolves in water.
(d) If the claim of correctness is raised then we are able to identify objective criteria of correctness.
The fourth premise says, roughly, that if we connect the uttering of our
normative propositions with a claim to correctness, then it is necessary
that we have some ways or methods for identifying objective criteria of
correctness for our norms and rules that guide action. Even if the necessity implied is a metaphysical necessity, the methods of identification
need not be understood in a strong metaphysical way. In simple terms,
they can be understood as merely including the standard forms of
practical/moral (or even legal) reasoning which constitute, more or less,
the structures within which we put forward our normative claims. To that
extent the constructivist motive of discourse-theory is preserved, without
vesting discursive procedures with constitutive role in the determination
of the standards of correctness for our normative propositions/norms.
(e) If we are able to know (through the pronounced methods) those criteria of correctness, then in many cases we know them.
This premise actually introduces the a priori necessity of the standards of
normative correctness: The satisfaction of the methods of normative
inquiry, which is a prerequisite of generating practical knowledge,
depends on the standards of correctness rather than the other way round.
The fact that there are standards of correctness is what makes our methods
workable. Thus, the stated knowledge of those criteria has an a priori
flavour; hence, the last premise proceeds to state:
(f) If we know those criteria then there are (exist) objective criteria of correctness for action (and the action-guiding norms we employ).
The fact that there exist objective standards of correctness for our normative propositions is what makes, in the first place, our normative statements, and more broadly our practice of practical argumentation,
intelligible. To that extent the transcendental arguments justificatory
effect works from the bottom to the top.
The last two premises establish a transition from the trivial fact that we
employ normative propositions in our everyday practice to the fact that
objective criteria of correctness for action exist. These criteria are not merely
standards of correctness but also conditions for the knowledge of normative
Blackwell Publishing Ltd 2005.

78

George Pavlakos

propositions (or, as indicated earlier, for the existence of the normative

facts that correspond to normative propositions); in other words they
delimit the metaphysical terrain within which we can discover or ground
action-guiding norms. Incidentally,19 I take these standards to include a
general norm of autonomy (NoA)not too different from Kants Categorical Imperative or Habermass Discourse Principle20plus all other norms
that can be grounded by the NoA in a somewhat direct way, that is by a
simple test of reason (akin to a test of universalisation).21 All remaining normative propositions are a posteriori knowable: They feature as conclusions
in normative (deductive) schemata whose major premises are either a priori
norms or other a posteriori norms. The important consequence of the a priori
nature of the standards of correctness is that it grounds a necessary connection between these standards and all knowable normative propositions.
To that extent, the claim to correctness is more of an indication of the substantive requirements of normative knowledge, rather than an autonomous
standard that imposes specific demands on individual norms.
6. Qualifying and Classifying Connections between Law and
Practical Reason
Explicated as above, the claim to correctness is able to support a robust thesis
for the interconnection of law and practical reason as advanced in Alexys
Sonderfallthese. This happens when the necessary connection between the
uttering of a legal proposition and the claim to correctness is recast as
signifying a necessary relation between knowable legal propositions and
the NoA. In that case, the NoA simultaneously stands for the conditions
of knowability of any norm and for an ideal dimension that generates
criteria of normative correctness (owing to the action-guiding content of the
NoA).
Alexy (2000) has suggested that one should distinguish between two
aspects of the claim to correctness: one of raising the claim and one of fulfilling it. Further, those two aspects relate in a different way to legal systems
taken as a whole and in a different way to individual legal norms. In particular, he argues that the raising of the claim to correctness has a classifying impact on whole legal systems: A legal system that does not raise the
claim to correctness (explicitly or implicitly) cannot be classified as being
19

The way to make those standards explicit is by relating the present transcendental argument,
concerning the existence of standards in abstracto, with Kants transcendental argument as presented earlier, which focuses on the a priori conditions of concrete norms.
20
For the content of the universalisation principle (<U>) in theoretical discourses as well as the
form it takes in practical discourses, the discourse principle (<D>), see Habermas (1992b, 1304;
1992a, 102, note).
21
Under this category fall the most universal of the norms of law and morality (e.g., some of
the human rights norms included in most of the contemporary legal systems).
Blackwell Publishing Ltd 2005.

Law and Morality

79

legal. Conversely, if a legal system raises the claim but does not live up to
it, then it is a legal system, however faulty a one. In this second respect, i.e.,
of fulfilment, the claim to correctness has a qualifying effect. In contrast, the
claim to correctness can only have a qualifying impact on individual norms.
The reason is that any norm that belongs to a legal system is anyway, from
a classificatory point of view, a legal norm.22 Hence, the only effect that the
claim, both in its raising and fulfilment dimensions, can have on an individual norm is of a qualifying character. In addition, Alexy takes the qualifying effect of the fulfilment of the claim to involve some form of necessity
both in the case of legal systems and that of individual norms; in other words
he holds that legal systems/norms that do not live up to the claim are necessarily faulty.
Bulygin (2000) seems to feel uncomfortable with the concept of necessary
qualifying connections. He directs his criticism at two points: first, he
remarks that if the claim to correctness has merely a qualifying effect with
respect to legal norms, then it is implied that there are things that can be
classified as legal norms and yet not raise the claim to correctness. In which
case, raising the claim would not be a necessary but merely a contingent
feature of legal norms. The second point of the criticism refers to the fact
that it is not possible for qualifying connections to be necessary in the first
place. The argument here is that fulfilling the claim to correctness cannot
be taken to be a defining or necessary feature of legal systems/norms but
merely of faulty legal systems/norms, and hence to be trivial.
Against those allegations I am going to corroborate Alexys defence
(Alexy 1989; 1992, 64136; 1997; 2000, note 61) of the claim to correctness. In
doing so I will suggest a few modifications to Alexys understanding of the
classifying and qualifying effects of that claim in relation to whole legal
systems and individual legal norms.
(i)

22

First, there is no reason for treating asymmetrically legal systems and

legal norms with respect to their raising a claim to correctness. The transcendental argument of the last section indicated that the claim to correctness is merely an indication of the conditions of knowability of
normative propositions, which in turn evolve around a general Norm
of Autonomy that is a priori and necessary. This entails the truth of the
proposition something is a legal norm if and only if it raises a claim
to correctness, which is just another way of formulating the claim to
correctness. According to the necessity connected to the claim to correctness, its being raised is unconditional and cannot be compromised
according to whether one actually (i.e., explicitly) raises the claim or
not (Alexy 1999, 382; Pavlakos 1998, 148, note 151). The raising of the

Alexy seems to be very sceptical in accepting the contrary (Alexy 2000).

Blackwell Publishing Ltd 2005.

80

George Pavlakos

claim is an objective feature of every legal and broader normative

proposition.23
(ii) Accordingly, the claim to correctness is a necessary objective feature of
both legal systems and individual norms. Being thus necessary and
objective it is not possible that either a system as a whole or an individual norm do not raise it. Furthermore, it is not possible to know that
something is a legal system or norm antecedently to deciding whether it
raises the claim or not. To that extent it is not possible to imagine either
a legal system that does not raise the claim (and hence is not a legal
system) or an individual norm which does not raise the claim (and is
merely faulty). Even if legislators, bodies, or judges omit or even explicitly deny the claim, the objective dimension of the claim cannot be suppressed. What happens in those cases, and especially in the case of the
explicit denial, is that one fails to comply with the demands of the claim
rather than avoiding the claim altogether. This is precisely the power of
the claim: It is not possible to dispense with it; it will always be posing
its substantive demands on the content of normative systems or individual norms.24
(iii) On the face of it, the only interesting connection that the claim can have
with respect to either individual norms or systems is what Alexy calls
a qualifying connection. In introducing the connection between individual norms and the claim to correctness, Alexy says that it can be only
a qualifying connection, since legal norms are already norms within the
framework of a legal system (Alexy 1989, 2000). This claim will be contradictory unless it is taken to mean that the fact of a norms raising the
claim to correctness is somehow secured by its belonging in the system.
Hence, in that case, the only thing that remains to be examined is if
norms live up to the claim. This can be right, however under one condition: The claims being raised is guaranteed not by the environment
of a legal system but by the conditions of normative knowledge that
simultaneously function as standards of normative correctness. Now, if
23

Alexy captures this objectivity by introducing a distinction between the claimants subjective intention and an objective or official dimension of the claim to correctness (Alexy 2000,
145).
24
Robert Alexy raised with me the point that it is still possible that some system of social order
does not raise the claim to correctness and therefore it fails to be classified as a legal system.
However, I am inclined to believe that accepting this possibility would question the Sonderfallthese, as it would be true that there are social orders (and the practical discourses comprised
by them) that do not necessarily raise the claim to correctness. I fear that if the latter were true,
then one could claim that with respect to law the claim to correctness is only an extra layer that
has to be added on top of something more fundamental, in other words that correctness is not
basic in law. In addition to it, the related problem arises concerning the criteria for passing from
non-legal to legal social orders: Positivists will always argue that there is some rule of recognition that states criteria of legality that are independent of correctness and capture social orders
that do not as yet raise any claim to correctness. To that extent I think that it is accurate to say
that the claim to correctness either embraces all conceivable rules of recognition or none.
Blackwell Publishing Ltd 2005.

Law and Morality

81

one moves a level higher, a whole legal system will, by the same token,
always be knowable as a legal system in virtue of the existence of the
aforementioned substantive standards. It is a different thing, however,
if it is going to be a correct or a faulty legal system. Consequently even
in the case of whole legal systems the only question that remains open
is whether they are correct or wrong.
(iv) The claim to correctness is connected to a series of objective standards
for action, which are a priori and necessary. Once those standards exist,
every normative proposition will necessarily raise a claim to be correct
according to those standards. Correctness in this context will consist
in the propositions amounting to normative knowledge. To that extent
it is important to keep the distinction between normative propositions
and the normative facts they depict.25 Then the claim to correctness will
be raised by all/normative propositions, whereas correctness will be a
feature only of propositions that amount to knowledge. Those will be the
ones that satisfy the conditions of knowability-as-correctness as the
NoA lays them down and, hence, succeed in depicting a normative
fact. To that extent correct norms realise autonomy, where realisation
of autonomy can be taken to mean that the depicted normative facts
will be tokens of the NoA (i.e., they will constitute a regulation of a concrete case within the boundaries of the NoA).
(v) The norm of autonomy (NoA) can be taken to express the content of a
(minimal) morality shared by anyone who advances legal claims. To that
extent, one does not need to actually share or agree with the content of
autonomy. As in the case of the claim to correctness, autonomy is a necessary condition for the knowledge of our normative propositions.
Intertwined in this manner with autonomy, the claim to correctness can
be reconstructed as prescribing that all legal propositions/claims ought
to be in accordance with what autonomy decrees. This can be further
analysed as saying that all normative propositions should aim at normative knowledge or, which is the same thing, at depicting a normative fact that is a token of the NoA.26
(vi) Summing up: Legal propositions necessarily raise the claim to correctness. They do so because they aim at normative knowledge that is
25

In a non-representationalist theory of semantic content it is still possible to distinguish

between the environment and our propositions about it. Even if the environment is revealed
within the semantic structures of language, it is not the case that it is constituted through them.
The main assumption of such a theory is that content is shaped by the environment in an immediate way, without the intervention of any sort of interface. For a detailed exposition of antirepresentationalism see Michael Luntley (Luntley 1998).
26
Conceived in that manner, the meaning of autonomy will derive from all the norms that we
know to be valid at a given time. By being valid tokens of a general norm of autonomy, those
special valid norms will have a voice in shaping the meaning of autonomy. Along these lines
the specification of the content of autonomy will involve a coherent interpretation of all valid
norms at a given time.
Blackwell Publishing Ltd 2005.

82

George Pavlakos
rendered possible only against the background of a norm of autonomy
that is a priori and necessary. To that extent correctness has to be understood as implying knowability. It follows that a normative proposition
is correct (i.e., amounts to normative knowledge) if it satisfies the standards of correctness laid down in the NoA. Contrapositively, it is faulty
(i.e., it fails to amount to normative knowledge), if it fails to satisfy those
standards. Thus correctness and wrongness are substantive issues that
are measured against the content of autonomy. Furthermore, since the
norm of autonomy is a priori and necessary, any proposition that fails
to meet the standards thereof is necessarily faulty (fails to produce normative knowledge). Therefore to say that faultiness is a necessary
feature of faulty legal norms, rather than saying something trivial as
Bulygin argues (Bulygin 2000, 1367), is to state that a normative
proposition fails to meet the substantive standards of normative knowledge.
Queens University Belfast
School of Law
2729 University Square
Belfast BT7 1NN
Northern Ireland
United Kingdom
E-mail: g.pavlakos@qvb.dc.uk

References
Alexy, Robert. 1986. Theorie der Juristischen Argumentation. Die Theorie des Rationalen
Diskurses als Theorie der Juristischen Begrndung. 2nd ed. Frankfurt am Main:
Suhrkamp.
Alexy, Robert. 1989. On Necessary Relations between Law and Morality. Ratio Juris
2: 16783.
Alexy, Robert. 1992. Begriff und Geltung des Rechts. Freiburg: Alber.
Alexy, Robert. 1997. Bulygins Kritik des Richtigkeitsarguments. In Normative Systems
in Legal and Moral Theory. Festschrift for Carlos E. Alchourrn and Eugenio Bulygin.
Ed. E. G. Valdes et al., 23550. Berlin: Duncker & Humblot.
Alexy, Robert. 1999. The Special Case Thesis. Ratio Juris 12: 37484.
Alexy, Robert. 2000. On the Thesis of a Necessary Connection between Law and
Morality: Bulygins Critique. Ratio Juris 13: 13847.
Bird, Alexander. 2002. On Whether Some Laws Are Necessary. Analysis 62: 25770.
Bulygin, Eugenio. 2000. Alexys Thesis of the Necessary Connection between Law
and Morality. Ratio Juris 13: 1337.
Dworkin, Ronald. 1977. Taking Rights Seriously. London: Duckworth.
Girle, Rod. 2000. Modal Logics and Philosophy. Teddington: Acumen.
Habermas, Jrgen. 1992a. DiskursethikNotizen zu einem Begrndungsprogramm.
In Jrgen Habermas, Moralbewutsein und kommunikatives Handeln, 53125. 5th ed.
Frankfurt am Main: Suhrkamp.
Blackwell Publishing Ltd 2005.

Law and Morality

83

Habermas, Jrgen. 1992b. Moralbewutsein und kommunikatives Handeln. In

Jrgen Habermas, Moralbewutsein und kommunikatives Handeln, 127206. 5th ed.
Frankfurt am Main: Suhrkamp.
Heidemann, Carsten. 1997. Die Norm als Tatsache. Zur Normentheorie Hans Kelsens.
Baden-Baden: Nomos.
Kant, Immanuel. 1991. The Moral Law. Groundwork of the Metaphysic of Morals. Ed. and
trans. H. J. Patton. London: Routledge.
Lowe, E. Jonathan. 1998. The Possibility of Metaphysics. Oxford: Clarendon.
Luntley, Michael. 1998. Contemporary Philosophy of Thought and Language. Oxford:
Blackwell.
Pavlakos, George. 1998. The Special Case Thesis. An Assessment of R. Alexys
Discourse-theory of Law. Ratio Juris 11: 12654.
Pavlakos, George. 2003. Normativity v Ontology: Law, Facts and Practical Reason.
Rechtstheorie 34: 393419.
Stern, Robert. 2000. Transcendental Arguments and Scepticism. Oxford: Clarendon.
Stroud, Barry. 2000. Transcendental Arguments. In Barry Stroud, Understanding
Human Knowledge, 925. Oxford: Oxford University Press. (1st ed. 1968.)
Williamson, Timothy. 2000. Knowledge and Its Limits. Oxford: Oxford University Press.

Blackwell Publishing Ltd 2005.