Wednesday, August 02, 2006

Normative Character of Law

Human laws are not in themselves statements of fact, they are rules or norms, which prescribe a course of conduct, and indicate what shoudl happen in default. Whether the norm itself is a correct statement within a particular system is another matter; this will depend not on factual verification but on whatever tests are accorded by that system. The sanction, however, is not usually connected in an empirical sense with the rule or its breach, but is merely indicative of what the rule itself prescribes, as the consequence of non-compliance.

Hence, normative rules must be carefully distinguished from physical laws, which state causal connections. Physical laws are subjected to verification, that is, they can be true or flase; but the notion of truth or falsity is inapplicable to normative rules. Such rules simply state what should or "Ought to" (sollen) happen. The use of the word "ought" does not necessarily imply moral obligation; the "ought" merely relates to the duty of compliance with the rule on pain of suffering the prescribed penalty. However, the legal "ought" may in some instances correspond with the moral "ought".

Thus the notion that a statement that something "ought" to be done is not to give a factual description but to prescribe a course of conduct based on the implication that reasons exist for so acting, and also on the existence of standards and criteria of appraisal, by which those reasons may be judged.

A rule of law, however, differs from this in that, it does not necessarily imply that reasons for compliance could be sought and perhaps given, but rather that it is derived from a valid authority. such an authority can consist in another norm.

1 comment:

Elmina Kenley said...

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