Facts and rules
Law has to do with at least two realms: norms and facts.[1] Any reference to law and its basic defining elements immediately includes, for example, norms, human conduct, crime, punishment and a few others. Similarly, each of these elements exists in at least two realms.[2]
“Norms”, “human conduct”, “crime”, and “coercion” may refer to abstract legal terms, and may describe empirical entities or their attributes. Norms and facts have to do with law as a whole, and with each of its particularities. Yet norms and facts are not the same. Hence, using the term “law”, to refer either to an abstract concept or to factual elements of legal and political discourse, means applying the same term but relying on different meanings—i.e. using the same word to refer to slightly different conceptions. What appears to be a unitary concept actually invokes an ambiguity.
On the one hand, law must relate to human conduct and its regulation—at least to some conduct. On the other hand, “law” does more than describe the facts or general patterns of conduct. It is normative, it seems to prescribe, whether by way of a command, a permission, a prohibition, etc.
The reference here is to “human conduct” rather than, for example “activity”, in order to specify “acts” in von Wright’s sense.[3] Much of the world’s “activity” is not willed, but natural. Some human “activity” is not subject to will or decision-making either, or is subject to these only in a very tenuous sense. Such human “activities” as forgetting, contracting infections, or dying in one’s sleep, are therefore not usually considered “conduct”, and law-makers do not attempt to curb them.[4] Of course certain results might be brought about by either an “act” or an “event.” A door may be opened by the act of an intruder, or by the “event” of a wild animal or a strong gale. “Law” refers to the effective regulation of human conduct.
A legal process may appear to take as its “starting point” an actual, material fact or act—temporarily stripped of whatever human thought might in addition impose upon it. Such as “the bare facts.” But really “the bare facts” are not bare: that they carry significance beyond their physics is already posited by their having been selected for discussion in the world of rules. In other words, physical “facts” do not speak for themselves in the world of rules:they are asserted by the language of legal relations.
Consider the case in which Joe was found guilty of murder by a criminal court in Chicago and sent to prison for 25 years. Here, there is a legal relation by which a normative authority sentenced a subject to comply with a negative sanction because of a breach in law. From this, it can be inferred that in the world of the facts at some point in his life Joe has killed another individual. There is a legal relation, and therefore it is possible to assume there has been an act.
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“World of the facts” and the “world of the rules”
Author of:
Territorial Disputes and State Sovereignty. International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020).
Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor and Francis Group, 2017).
Thursday 20th May 2021
Dr Jorge Emilio Núñez
Twitter: @DrJorge_World
https://drjorge.world
[1] I leave aside intentionally and for future research the third realm: values, or the “axiological” side of law.
[2] I understand law as phenomena existing in three realms: norms, facts and values (deontology, ontology and axiology). I leave the study about values and law for future assessment.
[3] Note the discussion does not include the distinction between act and omission because it would go beyond the purpose of the present blog series. Therefore, for this blog series, human conduct that is central to law for whatever reason may include acts as well as omissions.
[4] von Wright, George Henrik. 1963. Norm and Action. Routledge and Kegan Paul, Chapter III.
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