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Chapter 3: Foundational Concepts of Modern Positive Law

By Laurence Diver, Tatiana Duarte, Gianmarco Gori, Mireille Hildebrandt, and Emilie van den Hoven

In this part of the working paper, we denote and connote a small set of foundational concepts that ground modern positive law. True to our understanding of the artificial nature of positive law and the open texture of its conceptual scaffolding, we vouch for the ‘contrafactual’ meaning of these concepts, that derives from their usage while simultaneously informing it.1 Language usage is a rule-bound practice, taking into account the feedback loops that generate its performative effects. This implies that the ‘existence’ of these concepts both creates and delimits a space to perceive, order and act on the facts that make our world. Being ‘contrafactual’, such concepts create a vantage point from where to map, savour or reconfigure our world, without however suggesting that anything goes.

We seek to locate how law-as-we-know it produces the performative effects that guide and ground societal order, to put our finger on the way that legal protection exists.

Initially, we planned to develop a much larger vocabulary, to be integrated with the grammar to determines how these concepts can be used. In the process of digging into the meaning of the current set of concepts, however, we found that extending it to the myriad other legal concepts would produce a lexicon rather than the kind of constitutive layer of conceptual grounding we need to unearth. The idea of the vocabulary was to detect, identify and situate how lawyers think, what makes them ‘tick’, in order to highlight what law does and how. In a sense, we have been seeking to locate how law-as-we-know it produces the performative effects that guide and ground societal order, to put our finger on the way that legal protection exists in the context of modern positive law and the rule of law.

The concepts are grouped in pairs of two or three, to expose their interrelation and their interaction. We start, however, with the concept of a legal norm, to set the scene and prepare the ground for the subsequent notions of the Rule of Law and positive law, followed by jurisdiction, sources of law and legal effect, followed by legal subject, individual rights and legal powers, and we end with legal reasoning and legal interpretation. To better weave the web of meaning these concepts constitute, we use the prism of the three interrelated framing concepts: affordancemode of existence and legal protection by design, as proposed in the previous chapter


  1. R. Foqué and A.C. ‘t Hart, Instrumentaliteit En Rechtsbescherming (Gouda Quint Kluwer Rechtswetenschappen 1990); J. Habermas and W. Rehg, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Reprint Edition, The MIT Press 1998). 

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This page was last updated on 15 July 2021.