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Normative approaches to law (LAW-DS-NORMAP-25)

LAW-DS-NORMAP-25

Description

Introduction
Normative approaches to law address questions about the law as it ought to be, as opposed to the law as it is. They are sometimes criticised or dismissed as being ‘unscientific’. At the same time, however, legal scholars (including PhD candidates) are often tempted to offer recommendations for improving the law on a given subject. Or they wish to criticise a legal rule, doctrine, or court ruling, not merely for violating a higher legal norm (such as the constitution), but because they consider the law ‘unfair’, ‘unjust’, ‘inefficient’, ‘suboptimal’, or ‘unpractical’. Such claims presuppose the availability of a standard for determining what amounts to a fair, just, efficient, optimal or practical law. It is the objective of normative approaches to law to articulate such normative standards and analyse their implications. As a result, normative and evaluative claims about the law can become more than the mere subjective opinions of the author and make an actual contribution to our knowledge and understanding of the law.
There exists a broad variety of normative approaches, both to the law in general and to specific fields, such as constitutional law, contract law, public international law, and competition law. Some of these approaches understand the law as being subject to more general moral or political principles and/or to principles of justice. Prominent normative political theories include utilitarianism, liberal-egalitarianism, libertarianism, communitarianism, and civic republicanism. While much of normative political theory tries to formulate principles for a just or otherwise ideal society (ideal theory), other approaches focus directly on how to make things better in our currently decidedly non-ideal society (non-ideal theory). As to justice theories, traditionally distributive/social justice theories and corrective/interpersonal justice theories were the ones most often applied to law. Nowadays, racial, gender, climate, epistemic and transitional justice theories have gained prominence in legal scholarship.
Whilst these normative theories understand the law as implementing normative standards and principles coming from outside the law and existing independently of it, other approaches regard law’s normativity as immanent to it. Much of critical legal theory, for example, critiques the law on its own terms, for a failure to live up to its own normative commitments, aspirations and potential.
A final set of approaches is more ambivalent about their normative commitments. These approaches discuss ‘legal imaginaries’, ‘legal imaginations’, and ‘legal utopias’. Some draw on poststructuralism and others on Marxism (esp the early, ‘humanist’ Marx) or anarchism. Their aim is clearly to transcend the here and now of positive law and insofar they are akin to moral and political theories of law. However, crucially, their normative aspirations tend to be much more deflated, sceptical of the power of reason, in particular its universalist tendencies, and openly intuitionist, when it comes to imagining a better future and law’s role in it (if any).
Although this seminar draws on abstract theory, its main objectives are very concrete and practical. The core aim is to support researchers in making more articulate choices with regard to the (potential) normative dimensions and commitments of their own research projects. The first objective is to locate and recognise the normative aspects of one’s research project: are some of my research (sub)questions normative, and if so, what would be a good normative approach to answering them? How can I best explain and justify the normative approach(es) I am adopting, especially when they are relatively far removed from mainstream legal scholarship? How can my normative approach be combined with the other approaches I am adopting in my project (eg doctrinal or empirical)?
No specific prior knowledge is required for this seminar. All theories and concepts will be explained and thoroughly discussed. The seminar aims to be equally welcoming to researchers from other EUI departments.
Assignment
In a short statement (max 300 words), please answer the following question: to what extent is your research question normative and/or will you be employing normative research methods in your research project? Your statement will be circulated and commented upon by your peers during the seminar. The aim of the assignment is to reflect, individually or collectively, on what we mean my normative approaches to law. The aim is emphatically not to assess or evaluate anyone’s knowledge or skills. Please send your statement to Valeria.Raso@eui.eu by 9 January EOB

Programme & readings
Session 1: normative approaches and other approaches to law

• Robin West, ‘Introduction: toward normative jurisprudence’, in: idem, Normative jurisprudence: an introduction (Cambridge University Press 2011), 1–11

Session 2: normative aspects of my own research project

• The short statements written by seminar participants

Session 3: the plurality of normative political theories; ideal and nonideal theory

• Martijn W Hesselink, Justifying contract in Europe: political philosophies of European contract law (Oxford University Press, 2021), 24–54 (‘Political philosophy’) and 64–67 (‘Monism versus pluralism’)
• Amartya Sen, The idea of justice (Penguin, 2009),1-24 (‘Introduction: an approach to justice’)

Session 4: the critical and the normative

• Marija Bartl, ‘Socio-economic imaginaries and European private law’, in: The law of political economy: transformations in the function of law, PF Kjaer (ed) (Cambridge University Press, 2020), 228–253
• William M Paris, Race, Time and utopia: critical theory and the process of emancipation (Oxford University Press, 2025), Introduction

First, Second & Third Term: registration from 22 to 26 September 2025.

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