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In the tradition of continental legal literature, the Ought is usually contrasted with the Is.

I will adopt and adapt a current distinction terminologically traceable to Peirce (1839–1914), among others—that between “type” and “token”—and use it to render into English the German distinction between and (or ; cf. Kaufmann 1982—Arthur Kaufmann, 1923–2001).

The distinction was introduced in Chapter 1 between the reality that ought to be and the reality that is. In the reality that ought to be a further distinction was made between what is objectively right (norms and their content) and what is subjectively right, meaning rights and obligations. What is subjectively right depends on the content of norms as well as on what this content refers to in the reality that is—to actual subjects (people), states of affairs, and events.

In this chapter the problem of the foundation of the binding force of positive law—and hence of what is objectively right by virtue of norms posited through human will, that is, by enactment or convention—will be brought under the purview of the wider problem of the matrix of normativeness (the matrix of all norms).

Let me reiterate that what I presented in the previous chapters is not my own conception of the reality that ought to be (of what is objectively and what is subjectively right) and of its interaction with the reality that is. I was rather presenting my reconstruction of the conception still current, implicitly or explicitly, in the legal way of thinking in civil-law countries, a way of thinking that has taken shape over the centuries under the influence of natural-law theories first, and of German legal positivism thereafter. German legal-positivist theories in particular, though they deny the existence of any natural law, inherited from natural-law scholarship much of their conceptual apparatus (which took the name of German legal dogmatics), and the legal doctrine of civil law is still proceeding under the lingering influence of this apparatus. Hans Kelsen, the foremost legal theorist of the culture of civil law in the 20th century, sharply criticised some aspects of 19th-century and early 20th-century continental legal dogmatics, yet wound up instead giving us a more effective, compelling, and sophisticated restatement of German legal positivism (see Kelsen 1934, 39ff.; Kelsen 1960, 134–5; Pattaro 1982, XLIIIff.).

As was anticipated in Chapter 5, a norm is, on my view, a motive of behaviour: It is the belief () that a certain type of action must be performed, in the normative sense of this word, anytime a relevant type of circumstance gets validly instantiated. This must unconditionally be so, regardless of any good or bad consequences that may stem from the performance in question. My concept of norm is oriented. It presupposes that the believer consciously or unconsciously ascribes a normative character to the deontic modalities (obligatory, permitted, and forbidden) set forth in the norms he or she believes in: What this person believes to be objectively right is the type of action qualified as obligatory, permitted, or forbidden in the norm under the conditions specified in the type of circumstance the type of action is connected with in the norm.

It was discussed in Section 6.3, with regard to the content of norms, how an important role is played by the type of circumstance a type of action is conditionally connected with (a type of action whose performance will be believed to be binding per se anytime this condition is met). A conditioning type of circumstance determines the ethical, political, or economic import of the content of a norm by singling out and defining the conditions under which the type of action set forth in the norm is believed to be binding per se (per se obligatory, permitted, or forbidden: what is objectively right), that is, binding regardless of how desirable its performance is and whatever the pleasure or pain, the advantage or damage, that may result.

The kind of normativism maintained by the Uppsala School—a normativism occurring in similar terms in Hart 1961—I have always considered to be the most satisfactory and adequate, the way I understand norms and their role in the machinery of law: Jerzy Wróblewski (1926–1990) used to tell me, “Enrico, Scandinavian legal realism is no longer cultivated in Scandinavian countries. It is now cultivated in Italy, with you.” This was not necessarily a compliment (even if it was Jerzy’s intention to make one). It may also be a token of commiseration, as in: “This malefic legal-philosophical trend, Scandinavian legal realism, has finally and fortunately disappeared from Scandinavia. But now a madman in Bologna, Italy—Enrico Pattaro—is regrettably pushing forward with the reckless ideas advanced by the Uppsala School.”

Language-oriented philosophy, in its glorious stretch from logical empiricism to ordinary-language philosophy, has experienced an important season even in connection with the philosophy of law—and that even in Italy, where it yielded, from 1950 onward, significant results which I account myself to be directly indebted to. The two scholars at the forefront of this orientation in legal philosophy in Italy were Norberto Bobbio and Uberto Scarpelli (1924–1993), and I will be writing about them in Volume 11 of this Treatise, on the subject of legal philosophy in the 20th century.

In this chapter I will attempt in outline to give an idea of the concurrence of, and interaction between, norms and the other factors dealt with in Chapter 9 when it comes to keeping a system of law in force in society, among the people of a certain territory.