Inverting the Norm : Law as the 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.