3.1.2 Legal Norm

By Mireille Hildebrandt

On this page

1. Working definition
2. Examples of how ‘legal norm’ is used
3. The meaning of ‘legal norm’ in terms of MoE, affordance and LPbD
   1. Mode of Existence (MoE)
   2. Affordance
   3. Legal Protection by Design

Working definition

1. A legal norm is a norm that attributes a specified legal effect whenever specified legal conditions are fulfilled.
2. A legal norm is a specific type of rule taking the form of ‘if this then that’, where ‘that’ always concerns a specified legal effect.
3. Legal norms bind legal subjects and define the relationships between legal subjects.

4. A legal norm differs from a physical law that describes regularity or causality, e.g.

   1. Apples fall downwards from a tree, not upwards.

   2. Due to gravity, an apple will fall towards the earth.

      • The legal norm could be: ‘If an apple falls to the ground, it will be punished with xyz’, but for the fact that apples are not considered legal subjects and therefore cannot be punished.
5. A legal norm differs from a moral norm or a threat in that it stipulates a legal effect rather than merely obligating or trying to influence.
6. ‘Don’t hit another person’ in itself is not a legal norm but a moral obligation.

7. ‘I will hit you if you hit me’ is not a legal norm but a threat.

   • The legal norm here would be ‘Whoever hits another (…) may be punished by xxx.’
8. A legal norm is always part of a specific national, supranational or international jurisdiction that defines positive law within that jurisdiction.

9. A legal norm is derived from the sources of the law, and its application and interpretation depend on:

   • the context of the rule within the sources of law;
   • the context of the facts to which it is applied;
   • relevant legal principles implied in the relevant jurisdiction.

10. Legal norms take the form of a rule, but the legal principles that are implied within the relevant jurisdiction also have binding legal force, they co-determine the application and interpretation of the norm:

    • ‘Whoever commits a tort must pay damages if certain conditions are fulfilled’ has the character of a rule;
    • Unwritten constraints such as the need to act based on ‘good faith’, ‘reasonableness’, ‘trustworthiness’, ‘fair play, or ‘proportionality’ have the character of a principle.
11. Legal norms are sometimes classified as either ‘primary or regulative rules’ that prescribe or prohibit conduct (‘don’t steal’), or ‘secondary or constitutive rules’ that constitute the recognition, change or adjudication of primary rules (‘whoever steals may be punished with maximum 4 years of detention’).
12. Secondary norms attribute legal powers to recognise, change or adjudicate primary rules (the power to impose punishment, to conclude a contract, to get married, to legislate).
13. Deciding the meaning of a legal norm in a concrete case requires legal reasoning and legal interpretation. Even if the meaning seems evident, it is never given but always attributed.
14. The Rule of Law entails that legal norms provide legal certainty, justice (in the sense of treating equal cases equally and inequal cases unequally to the extent of their inequality), and purposiveness (being instrumental in serving goals set by the democratic legislature).

Examples of how ‘legal norm’ is used

The legal norm that killing another person is prohibited is a primary rule that is implied in the legal norm that killing another person is punishable with maximum detention of 4 years, which is a secondary rule. The latter norm recognises the former; it attributes the legal power to punish to the courts.

The legal norm that a valid contract must be performed may be enforced by the legal norm that failure to perform may result in an obligation to pay compensation due to breach of contract.

The legal norm that renovation of one’s house requires a building permit is part of administrative law and may be enforced by way of a legal norm that imposes a fine or allows for an order to undo the renovation.

The Rule of Law means that legal norms cannot be applied in an arbitrary manner, based on the whims of a government official or depending on the benevolence of a judge.

The meaning of ‘legal norm’ in terms of MoE, affordance and LPbD

Mode of Existence (MoE)

How do legal norms exist? Their way of existing, or mode of existence, clearly differs from that of a chair, a rock or a human being. We may be tempted to see chairs, rocks and human animals as physical objects or brute facts, whereas legal norms seem to be mental objects or institutional facts, existing in the minds of individual human beings. As discussed in chapter 2, this Project takes another view of the way that chairs, rocks, human beings and legal norms exist.

One could say that in the end all these ‘objects’ are both material and mental. Not only because mental objects like legal norms can only exist in the embodied mind of human beings, but also because to identify a chair or a rock as such again requires an embodied mind, i.e. a ‘linguistic body’¹ or a ‘language animal’.² Without human beings who speak of chairs, the object would cease to exist as a chair. Next to the embodied nature of institutional facts such as legal norms, we must also admit that ‘things’ like legal norms cannot exist as separate entities in individual human brains, since their meaning derives from the shared linguistic practice that affords the use of legal norms as points of reference for human interaction. Legal norms, therefore, are not only embodied but also relational and ‘exist’ as it were inbetween human beings.

‘Things’ like legal norms cannot exist as separate entities in individual human brains, since their meaning derives from shared linguistic practice.

The inbetween nature of legal norms (and indeed all other institutional facts) raises the question of the materiality of legal norms; if they are embodied but not contained within the ‘skinbag’ of individual human beings,³ where are they? This is what happens if we confuse materiality with physicality in the Cartesian sense of the term. The point is to remind ourselves of the fact that language is embodied in interacting human beings who speak the same language, based on shared practices and tacit background knowledge. The language both constitutes what people can say and is constituted by what people actually say, there is no chicken or egg here.

Because legal norms are enacted as written legal speech acts⁴ combined with the unwritten principles that are implied in the entirety of legal norms within a jurisdiction, their mode of existence is text-driven and thereby firmly grounded in natural language. Clearly, in oral societies, ‘legal’ norms are not text-driven, though nevertheless based in speech. The type of ‘law’ that is possible in oral societies is very different from that of societies informed by handwritten manuscripts and even more different from our own, which is rooted in the technologies of the printing press.⁵ The latter allowed a proliferation of externalised written legal speech acts that in turn generated issues of interpretation, enabling contestation, which in turn required new ways to achieve closure. Modern positive law incorporates all of this by way of legal remedies, court procedures, adversarial trials and – finally – the legal effect of the courts’ decisions. The division of tasks between legislature, public administration and courts provide a specific kind of protection against arbitrary exercise of military, punitive or economic power. This protection is core to the Rule of Law.

Legal norms exist as institutional facts, being the result of performative written speech acts and the implied principles that guide their interpretation. However, the nature of these institutional facts differs from that of, for instance, the legal effect that may be attributed based on a legal norm. We can say that legal norms are institutional facts capable of creating specified institutional facts, such as rights, obligations, legal status or legal powers. In turn, legal powers may afford the holder of such powers to create new legal norms. Think of the legislature that has the power to enact Acts of Parliament, or individual legal subjects who can conclude contracts or institute a not-for-profit association with dedicated bylaws. Here we see the difference between primary and secondary rules: a primary rule stipulates the creation of institutional facts; a secondary rule provides the legal power to do so.

The meaning and performative effects of legal norms depend on the interaction between human beings.

In short, the mode of existence of legal norms is grounded in natural language, and based on written legal speech acts. Even when carved in stone, their meaning and performative effects depend on the interaction between human beings. This interaction is a matter of language use and thereby highly adaptive, contestable and capable of providing closure. The interpretation of legal norms is not a matter of mechanical application – even if logic plays an important role in the justification of a decision. The closure that is provided is not a matter of brute force – even if such closure ultimately depends on the monopoly of violence. In other words, the mode of existence of legal norms, and the stuff they are made of, affords a kind of legal protection that cannot be reduced to either logic or violence.

Affordance

Legal norms as-we-know-them are an affordance of the information and communication infrastructure (ICI) of the printing press; they have been made possible by written legal speech acts. The fact that legal norms have developed as such was neither ‘determined’ nor ‘caused’ by the proliferation of printed text, but it was definitely an ‘affordance’ of written legal speech acts. One could say that legal norms have grown into the kind of resilient, robust and reliable mechanisms that they now are, due to myriad interactions that were enabled/afforded by the distantiation that is inherent in printed text. The fact that people feel compelled by the obligations and prohibitions of the law, also when they are not forced to obey by way of brute force, indicates the curiously fragile and simultaneously robust nature of legal norms.

This raises the question of whether written legal norms have different affordances in terms of coordinating, constraining, and enabling human interaction compared to, for instance, brute force, economic power and religious ritual. In oral societies the norms that hold together the community are not constraint or enabled by written but by oral legal speech acts, whose performative effect depends on ritual, physical force and on economic power rather than a monopoly of violence and a coherent system of externalised written norms.⁶ Could it be that the written nature of legal norms affords a kind of protection that is grounded in the fact that the norm has been externalised and — as it were — fixated in a way that allows people to refer to it when they give reasons for their actions, while also allowing them to refer to the written version of the norm when addressing others, for instance when instructing them or when holding them to account? Does the written nature of the norm create a kind of freedom by making people aware of the norms they are bound by? Does the abstraction that is stimulated by writing and further extended by the printing press create a distance between those who address each other as subject to norms, such that the norm can be reflected upon and challenged, creating a new kind of abstract space where both the content and the validity of norms can be discussed, challenged and changed? Is the rise of Hart’s secondary rules dependent on the rise of the printing press? Could it be that the idea that we have the power to change the norms that bind us, is an affordance of a specific ICI?

Print affords two types of freedom: to enact legal norms, and to challenge their meaning and their binding force.

In his seminal work, Patrick H. Glenn has convincingly demonstrated the crucial importance of the idea that norms themselves can change.⁷ He described the seven legal traditions of the world in terms of — amongst others — their relationship to time and change, showing how our idea of ‘making law’ is dependent on a specific understanding of time. Instead of experiencing time as being circular, we live in a linear time space, we create futures and test their salience. One could say that the ICI of the printing press invited a particular cybernetics (remote control via feedback loops): enacting written legal speech acts that create feedback loops between what they prescribe and how people actually interact. We believe that creating, recognising or changing the norms that bind us gives us control over the future we share. Positive law asserts that legal norms are made and changed by humans, not given by either nature, reason or the gods. This creates two types of freedom: the freedom to enact legal norms as we wish, and the freedom to challenge both their meaning and their binding force. This again raises the question of whether legal norms embedded in data- or code-driven systems afford the same kinds of freedom, and — equally important — who obtains those freedoms: human legislators, a democratic legislature, or the developers and/or providers of software code.

Legal Protection by Design

Legal norms as-we-know-them afford protection due to the multi-interpretability that is inherent in natural language and massively extended with the proliferation of printed text. The multi-interpretability affords contestability which offers a specific type of protection to those subject to legal norms; they can contest the interpretation of the norm that is implied in the acts or decisions of others, and they can thereby contest how their own actions are qualified in light of the norm, for instance, as a criminal offence, a tort, or as a breach of contract. The multi-interpretability creates the need for interpretation but also the need for closure, to enable those sharing a jurisdiction to plan their life. The combined need for interpretation and closure has resulted in a specific system of checks and balances, where different powers of the state are instituted as countervailing powers: legislature, administration and courts. It is within this system of checks and balances that legal norms as-we-know-them developed into hallmarks of both legal certainty and protection against arbitrary rule.

Legal protection must be deliberately designed into the architecture and the kind of choices ‘users’ can effectively and practically make.

To the extent that modern positive law offers protection by way of the legal effect that is attributed by legal norms, one could argue that this protection was not ‘designed’ but rather a side-effect of the text-driven nature of legal norms. The protection, in other words, was an affordance that was not deliberately engineered to offer ‘legal’ protection. Just like the walls of a house were not deliberately built to protect our privacy, even though they do afford a specific type of privacy. In the latter case, we have discovered that these affordances no longer hold when people connect with social networks via their personal computers or mobile devices, even when at home. The information they share becomes visible to a number of people, depending on the architecture and choices made available by the social network provider. To achieve a level of privacy comparable to that offered by the walls of a house, the protection must be deliberately designed into the architecture and the kind of choices ‘users’ can effectively and practically make. This has been called ‘privacy by design’ and in the context of the General Data Protection Regulation providers now have a legal obligation to practice ‘data protection by default and by design’. The notion of ‘legal protection by design’, of which data protection by design is an instance, would then be based on a generic obligation to always develop computing systems in such a way that the substance of fundamental rights (or other legally protected private and public goods) is protected at the level of the design/architecture/settings of these systems. One could argue that such is the intent of the proposed EU AI Regulation: to ensure that AI systems are developed in a way that foresees and mitigates interferences with fundamental rights.

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