The issue of normativity and the methodological implications of interpretivism I: The idea of normative guidance

Abstract

The article is the first part of an analysis that seeks to clarify the distinctive normativity of law, as it is reflected in the legal systems of constitutional democracies. It explores the ability of interpretive theories to capture the conceptual characteristics of the normativity of law. The normative guidance the law provides is characterised in terms of normative claims. Normative claims are construed as being based upon linking up expectations with practical reasons. The analysis lays out the conditions of providing normative guidance with the help of drawing a distinction between the success and efficacy of normative claims. The success of normative claims is explained in terms of their substantive justificatory background and the competence of those making them. The characterisation of the efficacy of normative claims is based on the distinction between instrumental and non-instrumental reasons.