The “ought to be” logic
Every scientific discipline includes conceptual knowledge with regard to objects. In that sense, while ontologically law may refer to human conduct, logically it is centered on concepts. In turn, the study of a concept can have two angles: in relation to a thought and in relation to knowledge itself. The former has to do with the act of thinking (i.e. formal juridical logic) while the latter is the representation of the object of reference (i.e. transcendental juridical logic).
Formal logic applied to the science of law is the “ought to be” logic. This is different from the Aristotelian logic of “being.” Von Wright[1] explains:
“‘Norm’ has several partial synonyms which are good English. ‘Pattern’ ‘standard’ ‘type’ are such words. So are ‘regulation’ ‘rule’ and ‘law’. Directions of use and prescriptions are perhaps not often called ‘norms’ but we should not hesitate to call them ‘normative’.
The word ‘law’ however is used in at least three typically different senses. First we speak of the laws of the state. Secondly we speak of the laws of nature. Thirdly we speak of laws of logic (and mathematics).
The laws of nature are descriptive. They describe the regularities which man thinks he has discovered in the course of nature. They are true or false. Nature does not except metaphorically ‘obey’ its laws. If a discrepancy is found to exist between the description and the actual course of nature it is the description and not the course of nature that must be corrected.
The laws of the state are prescriptive. They lay down regulations for the conduct and intercourse of men. They have no truth-value. Their aim is to influence behaviour. When men disobey the laws the authority behind the laws tries in the first place to correct the behaviour of men.
For this view, any single norm in a system is logically independent from the others (deontic units) and, therefore, can be true or false. However, this logical independence has a limitation imposed by the validity of the whole system.”
Consequently, a legal norm is in the sense of an imputative relationship a conceptual constriction. In simple terms, for example, “if A ought to be B or if –A ought to be S.” Following this example, there is a freedom to choose between different options in law: to comply with the expected behavior and thereafter the consequence ought to follow or not to comply with the expected behavior and some other consequence ought to follow.
From a logical point of view, a legal norm or rule—in large, a legal system—is valid, it exists, when it has been created following the procedure, by the authority, and in tune with the content determined by a superior norm or rule (logical existence). Law as validity is in the legal norms that exist in the world of the rules.
The “validity” of a rule or norm implies that the requirements for its production, its creation, have been fulfilled: formal (competent body and procedure), and material (compatibility with the content of higher norms) determined in other norms of the order that regulate the normative production. That is why in legal theory, validity of a norm or rule usually refers to that norm or rule as belonging to a legal system from its two angles: as formal validity and as material validity. Raz also proposes that recognition by institutions of application or implementation contributes to validity.[2]
Previous post:
Next theme:
Validity.
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).
Tuesday 08th June 2021
Dr Jorge Emilio Núñez
Twitter: @DrJorge_World
https://drjorge.world
[1] George Henrik von Wright, Norm and Action (Routledge and Kegan Paul, 1963), chapter 1, available at https://www.giffordlectures.org/books/norm-and-action/i-norms-general accessed 08/06/2021.
[2] J. Raz, “The Identity of Legal Systems,” California Law Review 59:3 (1971): 795-815, 803.
No comments:
Post a Comment