2. Legal norms and their structure

Question 1

2 opposite views of law

Answer 1

1. Legal naturalism
2. Legal positivism

Question 2

Legal naturalism

Answer 2

• view of law was hinged on the ancient sense of nature as a rational order, where all men, animals and things were to accomplish their own, inner reason of being (naturalis ordo), whether or not a divine footprint wasacknowledged in it.
• Law was justice and justice was the rational truth of nature, where all beings and things did what they were designed to do.

Question 3

Legal positivism

Answer 3

• Law consists of legal rules, enacted through a specific procedure, which are completely autonomous from religion and morality
• “source” of a law is the establishment of that law by some socially recognized legal authority
• Born out of Kelsen’s theory which goes under the denomination of ‘normativism’
• Legal positivism requires that some kind of test is introduced, through which norms can be acknowledged as such and discriminated from other, not legally binding rule
• Such a test could solely rest on the “origin” of a norm, its “pedigree”, to wit the process though which a norm is adopted by political institutions
• Each norm owes its validity to another norm, which governs and rules the proceedings through which the former is enacted

Question 4

Normativism

Answer 4

• theory developed by Kensel
• norms are dislocated through a hierarchical order (stufenbau), where each of them depends on the one which stands above it
• a norm is therefore valid in and only if it pertains to such hierarchical order, termed as legal order (or legal system)
• The author defined it as “pure theory of law” meaning the basic assumption is that law has little to do with ethics, moral and justice. It is rather based on points of view which could eventually diverge from morality and justice
• Pure = autonomous - norms which are legally bounding not because they are consistent with justice but because they are legally enacted.

Question 5

Soft positivism

Answer 5

he conventional “rule of recognition” of a norm may well incorporate, besides pedigree, principles of justice or substantive moral values.

Question 6

Structure of norms

Answer 6

• Law does not adopt absolute imperatives (such as “thou shalt not kill”), but it rather conveys a coercive social order, instead of binding only those who believe in it as religion does or instead of binding only those who accept it, as in the case of morality.
• a norm is such not because it stipulates a command, but because it stipulates the sanction to be applied in case the command is disobeyed by someone
• A norm is shaped as a ‘hypothetical independent period’, whose protasis (= the IF-clause) consists of a state of affairs and whose apodosis (= the THEN-clause) of a sanction

Question 7

The scope of norms

Answer 7

• Generality:
  
  • a norm is applicable to anybody finds herself in the state of affairs envisaged by the If clause.
  • Moreover, it is addressed not to individuals as such but to a class of individuals who happen to find themselves in the state of affairs envisaged by the If–clause
• Abstractness: a norm is applicable to whatever event or behaviour matches with the state of affairs envisaged by the if–clause.