Hart's and Kelsen's Concepts of Normativity Contrasted*

Abstract. Hart's and Kelsen's respective outlooks on the concept of normativity not only differ by the way they explain this concept but also, more importantly, in what they seek to achieve when endeavouring to account for the normative dimension of law. By examining Hart's and Kelsen's models in the light of Korsgaard's understanding of the “normativity problem,” my aim is to emphasise not only their contrasted perspectives, but also the common limit they impose on their theories by dismissing as inappropriate any question regarding the emergence of legal normativity. On the basis of my previous arguments, I shall explain why I deem Raz's analysis of the contrast between Hart's and Kelsen's conceptions of normativity to be misleading.     

Schmitt's Critique of Kelsenian Normativism*

Abstract. The aim of this paper is to underline the relevance of Schmitt's critique of Kelsenian normativism in the context of today's debate about the status of legal positivism. Schmitt's underlining of the limits which a certain kind of positivism imposes upon itself highlights a contemporary issue about what legal theory should aim at when accounting for the normative dimension of law. Schmitt's ultimate failure to take up the theoretical challenge he himself raised (with its well‐known consequences) is deemed to illustrate—negatively—the importance of providing a plausible account of the social practices which bring law into existence.