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The Legal Norm

December 02, 2022

The Legal Norm

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While positive evidence-based legal theory explains the causes and effects of law enforcement, normative legal theory informs what the law should be by navigating the values and reasons behind legal measures, law-making, and judicial law. Legal theorists use the word “normative” in its general sense, which includes legal, social, and moral norms. Normative legal theories are highly evaluative and intertwined with moral and political theories. An example that shows the differences between positive legal theory and normative legal theory is presented by comparing their approaches to tort law. While positive theory attempts to explain what causal forces the existing principles of tort have produced, normative theory determines which rules of tort would be most justified. [6] Legal norms as we know them are an affordance of the information and communication infrastructure (ICI) of the printing press; They were made possible by written legal acts. The fact that the legal norms developed as such were neither “determined” nor “caused” by the proliferation of printed texts, but it was certainly an “affordance” of written acts of legal discourse. It could be said that legal norms have become the kind of resilient, robust and reliable mechanisms they are today, due to countless interactions made possible by the inherent remoteness of printed text. The fact that people feel obligated by the obligations and prohibitions of the law, even if they are not compelled to obey by brute force, shows the strangely fragile but robust nature of legal norms. The biggest challenge for a legal theory, according to Kelsen, is to provide an explanation of the legality and normativity of law without attempting to narrow down jurisprudence or “jurisprudence” to other areas. The law, according to Kelsen, is essentially an interpretive scheme. Its reality or objectivity lies in the sphere of meaning; we attach a legal-normative meaning to certain actions and events in the world (PT1, 10).

For example, let`s say a new law is enacted by the California legislature. How is this done? Presumably, some people get together in a room, discuss the topic, finally raise their hand in response to the question of whether or not they approve a particular document, count the number of people who say “yes” and then proclaim a series of words, etc. Well, of course, the actions and events described here are not the law. To say that the description is the passage of a new law is to interpret these actions and events in a certain way. But then, of course, the question is why some actions or events have such legal significance and others do not. Hart rejects the idea that legal norms are formed by the classical “natural law model” and emphasizes contexts in which legal norms can make sense. Hart`s view shows how contemporary societies could function better if a more deflationary understanding of law were implemented instead of restrictive moral norms. [11] A legal standard establishes a standard of conduct. So as a standard, it can persist even if broken. Norms can be distinguished from causal laws, which must be reinterpreted if an exception is found.

Verbal cues help us determine what the norm is. Thus, “should”, “must”, “must”, “good”, “bad”, “good”, “bad”, etc. are part of the standard statement, while words such as “is”, “are”, “were”, “become”, “possible”, “impossible” tend to display descriptive rules. These linguistic signals reflect a difference, they do not constitute it. The counter-examples are numerous: “swimming is forbidden” and “we should be at the Col now” express normativity or description. Print offers two types of freedom: to enact legal norms and to question their meaning and binding nature. A legal norm is derived from the sources of law, and its application and interpretation depend on: Kelsen correctly observed that legal norms necessarily occur in systems. There are no floating legal norms. For example, if someone claims that “the law requires that a will be attested by two witnesses,” one must always ask oneself what legal system we are talking about; Is it U.S., Canadian, German or any other jurisdiction? Moreover, the legal systems themselves are organized in a hierarchical structure, which is very complex, but also has a certain systematic unity. We are talking about Canadian or German law, et cetera, not just because they are separate countries where there are laws. They are also distinct legal systems that express a certain cohesion and unity. Kelsen wanted to capture this systematic unity with the following two postulates: We can set aside the difficulties that such a vision poses with regard to morality.

Obviously, many philosophers would disagree with Kelsen`s view that moral reasons for acting apply only to those who choose to uphold the fundamental standard of morality (whatever it may be). Even if Kelsen is completely wrong about this conditional nature of moral imperatives, he may be right about the law. However, it is questionable whether Kelsen manages to provide a non-reductive explanation of legal normativity, since his presentation of legal validity has proven to be reductive. The problem here is not simply relativity from a particular point of view; the problem is that Kelsen failed to justify the choice of a relevant point of view for any reason or reason of any kind. By deliberately avoiding any explanation of what might justify an officer`s decision to uphold the legal viewpoint or a particular fundamental norm, Kelsen left unanswered the most pressing questions about the normativity of the law. Instead of explaining what makes the premise legally rational or what makes it rational to view the requirements of the law as binding requirements, Kelsen invites us to stop asking. To the extent that modern positive law offers protection by the legal effect attributed to legal norms, it could be argued that such protection was not “designed” but rather a side effect of the textual nature of legal norms. In other words, protection was affordance that was not intentionally developed to provide “legal” protection. Just like the walls of a house were not intentionally built to protect our privacy, although they offer some type of privacy.

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