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3.3.1 Introduction

By Emilie van den Hoven

Positive law, consisting of a collection of legal norms and drawn from the sources of law in a specific jurisdiction, binds legal subjects by virtue of its legal effects. To understand law’s current mode of existence, it is thus imperative to understand the nature of these notions and how they operate. What is ‘legal effect’ and how does it prompt us to follow legal rules? How is it different from laws of cause and effect in natural sciences and how is different from ethical norms? What are the ‘sources of law’ and how do they stipulate the legal effects in a given jurisdiction? How should we interpret them and use them in our legal reasoning? How have we come to understand the notion of ‘jurisdiction’ and how does it function as an architectural feature in our legal world?

How is law different from cause and effect in natural sciences, and how is different from ethical norms?

These questions do not have straightforward answers, but most are intricately related to the shared institutional legal world that we have created. Institutional fact, as opposed to brute fact, in the legal context is afforded to us by natural language and text. The affordances of a text-driven ICI have meant that interpretation has become the hallmark of modern positive law. The fact that we are confronted with the multi-interpretability of natural language in the legal context has, in turn, afforded us possibilities of contestation and argumentation. This also means that we need some form of closure, lest we perpetually discuss what is law and what is not, which laws apply, and which do not. Therefore, legal protection in the context of text-driven law implies an emphasis on values like legal certainty and predictability, while equally calling for the discretionary and deliberative qualities that are core to the rule of law.

To tease out what this specific type of text-driven legal protection consists in, this chapter looks more closely at each of the three legal concepts in turn through the prism of the conceptual innovations that are at the core of the COHUBICOL project: affordance, modes of existence and legal protection by design.

This page was last updated on 14 July 2021.