See also the discussion of legal norms in our Working Paper on Text-driven Normativity.
- A legal norm is a norm that attributes a specified legal effect whenever specified legal conditions are fulfilled.
- 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.
- Legal norms bind legal subjects and define the relationships between legal subjects.
A legal norm differs from a physical law that describes regularity or causality, e.g.
- Apples fall downwards from a tree, not upwards.
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.
- 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.
- ‘Don’t hit another person’ in itself is not a legal norm but a moral obligation.
‘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.’
- A legal norm is always part of a specific national, supranational or international jurisdiction that defines positive law within that jurisdiction.
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.
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.
- 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’).
- 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).
- 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.
- 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).