Trevor N. Wedman

Inverting the Norm

Law as the Form of Common Practice

[Die Umkehrung der Norm. Recht als Form der gemeinsamen Praxis.]

2022. XII, 179 pages.

Rechtstheorie - Legal Theory 5

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ISBN 978-3-16-161691-4
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Published in English.
Trevor N. Wedman shows that sovereignty, subjectivity and normativity, or the sovereign, the subject and the (legal) norm are three wholly interdependent concepts: the meaning of each of these concepts entails the other two. The title Inverting the Norm refers to an attempt at switching our perspective on legal normativity from top-down to bottom-up. The law is our reflected, and thus sovereign, form of common practice.
Trevor N. Wedman seeks to understand the key assumptions underlying modern legal theory. Going back to Hobbes, but also making use of the developments in the theory of action and language philosophy over the past century, he breaks down the static conception of the state into one dependent on the actions and reflections of individuals, i.e., its citizens. He develops a social ontological theory of the law, in which the law is not taken as a mere given, but as an institutional fact. He criticizes both the Kelsenian conception of the Basic Norm and the Hartian notion of the Rule of Recognition as failing to account for the agency of individuals. The author turns to the work of one of Kelsen's contemporaries, Felix Somlo, in order to develop an alternative conception of the law that operates not from the top-down, but from the bottom-up. In this way, the law itself comes into focus as that which results from the reasoned jurisprudential reflection on the reality of meanings and actions.
Survey of contents
1. A Man At Rest
2. Regarding 2.061
3. Empiricism Or Positivism
4. Radical Legal Positivism

Chapter I Logic Of Norms I
1. A Normative State Of Affairs
2. Is And Ought
3. Laws, Scientific And Legal
4. Beyond Prescriptions
5. The Normative Relation
6. Power In Reason
7. Fact And Fiction
8. Summary – The Law As Common Ground

Chapter II A Positive Conception Of The State
1. Commands Of The Sovereign
2. Leviathan, Not Rex
3. Political Agency
4. The Absolute State
5. Volonté Générale And The Legal Concept Of The Political
6. The Unity Of The State

Chapter III Deus Sive Civitas
1. Jurisprudence And Theology
2. State As Hypostasis
3. The Problem Of Many, Of No Gods
4. »Absolute Positivism«
5. Value Nihilism
6. Kelsen's Golden Calf
7. Spunk
8. The Tyranny Of Necessity
9. A First Convention
10. The Social Construction Of The State

Chapter IV Legal Norms As Plurale Tantum
1. Validity And The Collective
2. Modernity And The Law
3. Objectivity And Its Propositional Content
4. Subjectivity And Interpretation
5. The Structure Of Law
6. The Starting Position
7. The Flux Of Sovereignty
8. Plurale Tantum
9. The Logical Sentence
10. Absolute Validity

Chapter V Facts And Matters Of Fact (Logic Of Norms)
1. Naturalism And Realism
2. »Hard Facts Make Bad Law«
3. The Critique Of Pure, Not Practical, Reason
4. Objectivity In The Law
5. Knowing The Law
6. The Mode Of Expression
Conclusion – Law As Constitution

Trevor N. Wedman Born 1981 in Oklahoma, USA; he obtained his Juris Doctor degree at the University of San Diego School of Law and his PhD at the Institute for Philosophy of the University of Leipzig; he currently researches at the University of Vienna and practices international commercial law.


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