Introduction
Some questions seem simple on the surface. Yet, after the scholar has to face them, the simplicity vanishes. One such question concerns the core concept of legal philosophy: What is “law”?[1] To what exactly is the user of the term referring when they name it is a matter of controversy. Several answers to this ostensibly “simple” question suggest themselves:
“What officials do about disputes is…the law itself; the prophecies of what the courts will do…are what I mean by the Law; statues are sources of Law…not parts of the Law itself; Constitutional law is positive morality merely; One shall not steal; if somebody steals he shall be punished…If at all existent, the first norm is contained in the second norm which is the only genuine norm…Law is the primary norm which stipulates the sanction.”[2]
The differences between all such definitions—and others might of course be offered—pertain to the frame of reference. For example, in a political context “law” may mean the monopoly of power: “Under such a system”, someone might say, “the president’s word is law.” And new piece of legislation that is “unenforceable” can be recognized as a “real” law in a sense that is obvious limited compared with a law that is effective.
In other contexts, “law” means a validly-constituted rule—or, in others, the full collection of such rules. In such contexts, the coercive effect of a law is irrelevant to its recognized status as law. Similarly, a person, a government, or a non-governmental institution may create, apply, and therefore define law.
To share an understanding of “law”, and therefore its conceptual or normative and substantive or factual implications, a context of discussion must be shared; a shared platform of certain presuppositions must be agreed. This blog series aims to show how the normative and the factual might interact.
The normative maintains that the object to be known by the jurist is the norm and that positive law is intuited or captured differently than by the senses. For this view, legal science would be a science of ideal objects because norms are known by using our intellect (as we do with the objects of logic and mathematics) but they are not, for example, seen or felt by our senses.
A factual understanding of law opposes this ideal view and accepts its inter-psychological reality so that legal knowledge will be based on what the psychophysical experience reveals. A factual view of law does not recognize any other contact with experience than sensible intuition. This way of knowing helps us understand the nature with which legal knowledge dissolves the distinction between the knowledge of our data by reference to another event that occurs. These facts may refer to the rules they originate from or the rules they apply to.
For example, by interpreting the law it may be possible to know the real intention of those who are sanctioned based on the mere link of existence that exists between the fact and the law. Consider a Judge and his decisions. For a normative view, the law is a norm in all its possible significance (e.g. the sanction applied by the Judge to a particular case). For a factual view, however, it is a psychological fact with its circumstantial environmental relationship.
The blog series will outline an account of “law” according to which different “ontological” statuses are recognized but, it is explained, these different meanings of “law” remain related, and are indeed “synergetic.” Although we may argue about “what is law?” the different answers to that question have to do with something different than law itself. These different answers are inter-linked with the assumptions we depart from and, therefore, we should acknowledge these answers are normatively and factually different conceptions of law.
Next theme:
Law: concepts and conceptions.
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 27th April 2021
Dr Jorge Emilio Núñez
Twitter: @DrJorge_World
https://drjorge.world
[1] See Jules L. Coleman and Ori Simchen, “Law,” Legal Theory 9 (2003) 1-41, 5, who identify different questions often conflated within current debates in the philosophy of law.
[2] H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 1997), 1-2.
No comments:
Post a Comment