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3.1.1 Introduction

By Mireille Hildebrandt

Law is often presented as a system of legal norms that bind those who are subject to a specific national, supranational or international jurisdiction. Legal norms differ from other types of norms, notably moral norms or physical laws, but it is not always easy to explain what makes the difference. One could point out that physical laws have effects that are caused, whereas legal norms have legal effects that are the performative effect of the written legal speech acts discussed in the previous chapter. Legal norms also differ from moral duties in that their legal effect does not depend on the moral inclinations of either those in charge or of those subject to the norm.

Law is a situated adversarial dialogue based on iterant constructive re-interpretation

Legal effect is attributed by positive law, that is the entirety of legal norms that define a jurisdiction. This entirety of legal norms implies coherence and integrity, meaning that norms should not be contradictory and if they are it should be clear which norm overrules the other. Nevertheless, the law is not a system of static rules where logical consistence is a goal in itself. Moreover, law is not a monologue based on deductive reasoning from immutable axioms, but a situated adversarial dialogue based on iterant constructive re-interpretation of the relevant legal norm. With law, we are not in the realm of mathematics but rather in the realm of practical reason, grounded in experience rather than logic. Legal norms are performatives, their mode of existence depends on the adaptive nature of the language game of a particular jurisdiction and thereby on their use as a point of orientation and coordination, requiring acuity and ingenuity rather than mechanical application.

Nevertheless, to fulfil their role as legal norms rather than moral rules or social habits the final word on the meaning of a legal norm requires closure. In a constitutional democracy that final word is with the courts, in turn requiring a justification that stabilises the meaning of the norm in light of the facts of the case, while also qualifying the facts as such in the light of the relevant legal norm. As we will see in the final subsection of this chapter, this stabilisation requires that the justification takes the form of a syllogism – where the major is the legal norm, the facts form the minor and the legal effect is given by the conclusion. What should be clear is that the syllogism presents a form of deductive reasoning that is only possible after the constructive interpretation of both the norm and the facts, taking into account the entirety of the legal system that applies in a specific jurisdiction. The syllogism is not a methodology to find the law (context of heuristics) but the justification of a decision about a concrete case (context of legitimisation). Obviously, however, the constraints imposed on the context of heuristics by the syllogism restrict how a legal norm can be interpreted and how the facts can be qualified.

This page was last updated on 14 July 2021.