I read in the BBC News Magazine that ‘Nightly dreaming is a feature of the normatively-functioning brain – it is therefore part of our biological inheritance…’ Ignore the glaring non sequitur. What about ‘the normatively-functioning brain’? Is that a thing? Does the author, Shane McCorristine, ask his doctor if he has normative blood pressure?
Language changes, and the normalization of pompo-verbosity is a vector of change. That is also what gives us ‘gender discrimination’ in the place of ‘sex discrimination.’ Generally speaking, this usage is harmless. No one thinks that appointing four male drag queens to the UK Supreme Court is going to fix its current ‘gender imbalance.’
The tendency to avoid ‘normal’ in favour of ‘normative’ has two sources. One is the disreputable desire to make a banal point sound fancy or academic. The other is the reputable desire to distinguish the typical from the desirable. But we don’t need ‘normative’ for that. Your gran knew what ‘normal sex’ means and, like Dorothy Parker, she also knew that ‘Heterosexuality is not normal, it’s just common.’ Of course, Gran would have been able to master the phrase ‘heterosexuality is not normative…’ and even, ‘heteronormative sexuality is not normatively normative’. It’s not complicated, once you know the code.
During a period of flux, however, we need to disambiguate. In contemporary jurisprudence, pervasive ambiguities have made the terms ‘normative’ and ‘normativity’ practically unusable. An article entitled, ‘Explaining the Normativity of Law’ could be about almost anything: there is no way of knowing in advance, and often no way of knowing in retrospect either. Here are some of questions you might find addressed under that title, together what seem to me the right answers, in telegraphic form.
- Q: What is the relationship between laws and norms? A: Some laws are norms.
- Q: What motivates people to conform to the law? A: There is no interesting general answer.
- Q: How does the mere existence of law give people reason to conform to it? A: It doesn’t.
- Q: How is it possible that the existence of a law could give people reason to conform to it? A: It depends on what kind of reasons you have in mind.
- Q: What explains the fact law provides a general moral justification for coercing people? A: There is no such fact.
- Q: What warrants the use of normative terms in stating rules of law? A: The same kind of things that warrant the use of normative terms in stating rules of football or grammar.
As you can see, questions about the ‘normativity’ of law could be about the character of laws, about motivational psychology, about semantics, about practical reasoning, or about political morality. (I address some of the moral questions here.) There are probably other possibilities too.
This makes it difficult, especially for beginners, to find a safe path into contemporary legal philosophy. Pitfalls that have always been there are now obscured. In 1957, Lon Fuller asked how there could be ‘an amoral datum called law, which has the peculiar quality of creating a moral duty to obey it’. The question-begging was so obvious that any undergraduate could step around it. But today, a begger of Fuller’s sort might ask, ‘How is the facticity of law consistent with its normativity’? Would you blame a student for thinking that there is a deep problem here? Or for hating jurisprudence?
I’m afraid it is probably too late for ‘normative’; it is going the way of ‘gender’. The best we can now hope for is logic-chopping to keep the path as clear as we can. It is so normal to use ‘normative’ for ‘normal’—and a bunch of other things—that that has become ‘the new normative’. You ‘could care less’? I hope so.