Normative legal theory is concerned with reasons for legal actions, including reasons for adopting legislation or for judge-made law. This very brief entry in the Legal Theory Lexicon attempts to sort out some the terminology by discussing the terms "normativity," "morality," and "ethics" in their various forms and meanings. As always, the Lexicon is aimed at law students with an interest in legal theory.
A Word About Definitions and Usage
In ordinary English, the words we frequently use words like "normative," "moral," and "ethical" in loose and imprecise ways. Sometimes, these terms are used interchangeably, and so one could say that a "normative argument" is an "ethical argument" and that both of those phrases are equivalent to "moral argument." There is nothing wrong these usages--as long as they are clear. But we may have a need for more precise terminology that allows us to make distinctions between different kinds of reasons for action. In the discussion that follows, I will lay out a proposed set of stipulated technical definitions for these terms.
Let's begin with the term "normative." The Merriam Webster online dictionary offers the following as one definition: "of, relating to, or determining norms or standards" and "norm" is variously defined as "an authoritative standard" or "a principle of right action binding upon the members of a group and serving to guide, control, or regulate proper and acceptable behavior."
These definitions capture standard meanings of "normative," but there is another sense of this term that is important for legal theory. "Normative" can be used to refer to reasons for action of all kinds, including laws, rules of etiquette, social norms, and reasons of ethics and morality. This broad sense of normative allows us to draw an important contrast between "normative" and "positive" statements or propositions. And it also allows us to identify an important common characteristics of legal norms, social norms, and moral norms--all of which give reasons for action.
Using this terminology, we can then draw and important distinction between legal norms, on the one hand, and moral norms, on the other. Legal norms purport to give reasons for action. That some action is against the law is a kind of reason not to engage in that action. Moral norms also give reasons for action, but most accounts of morality insist that moral reasons trump all other kinds of reasons. Thus, if an action is morally forbidden but legally required, then all things considered, one should not engage in the action. Of course, the fact that an action is legally forbidden or required is a fact that morality can take into account; for example, the fact that an action would trigger legal punishment might be relevant to the question whether the action is morally required.
Another way to see the difference between moral norms and legal norms is via consideration of moral theories to the law. A moral theory like consequentialism provides a standard for judging the law--for determining whether a particular law is good or whether there are reasons to change the law. Deontological theories and aretaic (virtue-centered) theories perform a similar role.
The word "moral" was coined by Cicero to translate the greek word that is the ancestor of our word "ethical" into Latin. And the words "ethics" and "morality" are frequently used as synonyms. Some writers distinguish the two in ways that might be useful to legal theorists. For example, we might use the word "ethics" to refer to the normative standards that apply to some specific groups. Thus, we might distinguish "legal ethics" or "medical ethics" from the all-things-considered moral obligations of lawyers and doctors.
Unfortunately, the terms are used to mark other distinctions as well. Sometimes "morality" is used to refer to the moral norms of a particular community--as opposed to "ethics" understood as the objectively correct normative standards that have universal application. But sometimes this relationship is flipped, with "ethics" used to refer to community-relative standards and "morality" used for objectively-valid universal standards.
Avoiding Confusion Via Stipulation
Because of the variations in usage, legal theorists can only achieve clarity in their usage of "normativity," "morality," and "ethics" by stipulating definitions. Once the stipulations are in place, readers will be able to clearly distinguish the way in which the terms are being employed.
If I might be permitted to offer a recommendation, I would suggest that "normative" should generally be used by legal theorists in its general sense that encompasses legal norms, social norms, and moral norms. My suggestion is to use the word "morality" to refer to the kind of all-things-considered reasons that general moral theories (such as consequentialism) purport to offer. I have no particular recommendation for use of the term "ethics."
This entry in the Legal Theory Lexicon introduced some of the terminological difficulties that can attend usage of the terms "normativity," "morality," and "ethics" by legal theorists. These terms are frequently used in imprecise ways that can generate confusion! But the solution is simple: stipulate!
Related Lexicon Entries
- Legal Theory Lexicon 008: Utilitarianism
- Legal Theory Lexicon 010: Deontology
- Legal Theory Lexicon 012: Virtue Ethics
- Legal Theory Lexicon 014: Fact and Value
- Legal Theory Lexicon 016: Positive and Normative Legal Theory
- Legal Theory Lexicon 041: Metaethics
(First posted on June 25, 2017.)