WLO

Constructing Concepts of Law

“Law”:
 Text – Acts of Parliament.

 Facts empirical about the world, for example, the laws of physics.

 Norm. A rule. Involves an act, a subject & the conditions, circumstances. Things that
can be practised. But needn’t be actually practiced or enforced – can be an example.

 Normative statement/propostion – rights, duties, obligations, powers. Ordered to do,

permitted to do, empowered to do. Unlike norms, normative statements can be
infinite.

 State law is an example of a normative system – a collection of norms. It is a system

because the norms are connected in some way.

o Norms shouldn’t be confused with texts – if you destroy the text, you don’t
destroy the norm. Text is merely a way of documenting a norm.
o Norms aim to guide conduct.
o Sometimes compliance with one law is a condition of another norm – they are
interlocking. We are subject to more than one single normative system.
What’s special about state law as a normative system?
There are both norm-creating and norm-applying institutions.
Some legal theorists say that nothing can be law unless it has been created. This would be
incorrect, though. What about customary law? To explain law, one can look at what norm-
applying bodies (eg, the courts) do – if they treat it as law, perhaps it is?
State legal systems claim to be comprehensive – able to regulate all human activity. But
how realistic is this? State legal systems may be comprehensive in terms of creating norms
with which to regulate all human activity, but in practical terms, is this possible?
State legal systems claim to be supreme – superior to any other co-existing normative
system. But, other normative systems could claim to be supreme, most obviously religion.
Devout followers of a particular religion are likely to be of the opinion that their religious
norms are the most important norms that they are influenced by.
In contrast to the general definition of a norm, practice is an essential element of state law.
Practised by a norm-applying institution, and the people to whom the norms are addressed
must by and large comply with these norms.
???Positivist view: the existence of state law doesn’t deny the existence of other normative
systems. This does, however, downplay the status of the state, however.???
Coercion:
We don’t choose which societies & countries we are members of, born into. What we do is
pre-conditioned by what others are already doing. Law as a concept is to do with the
conditions by which this coercion is justified.
There are more rights & duties, of course, than the ones that law creates.
What we do affects people elsewhere. Coercive structures bind people together.
Positivists would say that there is no limit to what state law can do.
Law is about what, collectively, we can do. To act in the name of law is to act in the name of
the whole community.

HART?