Serious engagement of leading authors with cutting-edge legal problems When this theory is placed in a legal context, an action is considered just when an individual who is a virtuous moral agent performs an act that shows the essence of human excellence. In the application of virtuous legal norms, a theory of judgment centered on virtue shows the characteristics of judicial moderation, courage, temperament, intelligence, wisdom and justice. These excellences can be translated into a concern for justice in the jurisprudence of virtue. [9] 13. Valukhov seems to defend this thesis when he says: In short, one can accept that a norm of law is a norm of law only if (but not necessarily, if) it has some degree of institutional power for all judges within the legal system. See footnote 6 above, p. 78. Although Waluchow seems to deny the same principle when he asserts that a valid norm may lack institutional power or that its institutional power is somehow overcome by a competing norm (see page 174). Hart explains legal normativity by referring to social facts instead of Kelsen`s approach, which has a methodological dualism. Contrary to Kelsen`s belief in the radical independence of the law from morality, he argues that legal theory is fundamentally worthless, Hart does not take such an extreme view and instead advocates soft positivism. It recognizes that conformity with moral principles or material values may be included in the criteria for determining the validity of legal norms. In explaining the normative power of the law, Hart focuses on the context in which normative proposals exist, which has significant power to condition the meaning of these statements.
[11] In the legal sense, retroactive effect refers to a law that affects or invalidates a person`s acquired rights under applicable law by creating new obligations with respect to pre-determined considerations. Legal norms can be classified either as true retroactivity, in which norms influence legal relationships that existed before their effect, or as pseudo-retroactivity, which refers to how the validity of old legal relationships can be influenced by divergent norms. [1] In his book Pure Legal Theory, Hans Kelsen wants to provide a holistic definition of law by embodying a comprehensive analysis of legal normativity and systematic structures. Pure Theory advocates legal positivism, which makes a clear distinction between the factual “is” and the “what should be.” Kelsen identifies the law both as a unique type of social phenomenon that differs from the rest in its specific nature of coercion, and as equivalent to a system of norms. However, he also argues in favour of the importance of distinguishing between law in the factual and normative senses by combining his conviction of the normative nature of law with methodological dualism. [10] Traditional systems for retrieving legislation and navigating text retrieval, where a lawyer had to enter certain words in order to acquire the section of the law that interested him. This was very ineffective, as the rule of law can be fragmented, with ownership of the legal system governing a legal norm in a social relationship being contained in different pieces of legislation. The fragmentation of legal standards has thus exacerbated the ineffectiveness of law enforcement and created high obstacles for lawyers with regard to legal research and in particular for people who wanted to retrieve legislative information but had no legal training. The ontological model provided an effective solution by categorizing legislation according to the importance of the legal standard it contains, thus improving both the clarity and effectiveness of research. [12] Hart rejects the idea that legal norms are formed by the classical “natural law model” and emphasizes contexts in which legal norms can make sense. Hart`s view shows how contemporary societies can function better when a more deflationary understanding of the law is implemented instead of restrictive moral norms.
[11] The ontological model of legal standards is an important tool because it allows for effective research that enables legal practitioners to make responsible decisions in court through the application of legal standards. Legislation refers to laws promulgated by the government and formalized by parliament, thus formulating legal norms and their relationship. An ontological model of legal norms can provide legal practitioners with explicit and visual representations of the processes by which legislation is created and administered by the executive government. The standards themselves can be modeled using logic, rules, or ontologies to facilitate the process of retrieving legal information and semantic navigation. [12] Although both legal theorists Kelsen and Hart believe that legal normativity cannot be reduced to mere factuality or moral normativity, their approaches to the interpretation of the term itself differ. A comparison of their respective contributions to legal normativity is presented. Legal institutions can govern in two ways. First, they can be classified as planning organizations that create, implement, and enforce social plans, thus indicating how many legal norms are simply plans.
[4] However, planning institutions may also apply and enforce legal standards that were not created during the planning process, but still allow organizations to regulate. An example of this would be a common norm that has been shaped and shaped by cultural values over long periods of time. Shapiro calls these legal norms “plan-like norms” that have been “upheld by human action” and “save on consultation costs, compensate for cognitive disabilities, and organize behavior among participants.” These legal concepts can then be positioned and then considered in the context of modern legal systems. A common master plan, consisting of the basic rules that underpin legal systems, allows for the transfer of rights, powers and responsibilities to different officials. In addition, partial master plan plans are developed, which are either in the form of plans or in the form of executive-administered plan-type standards, for example, special criminal law standards that prohibit murder or laws that determine tax collection processes. Therefore, the set of laws of a jurisdiction at any given time consists of the totality of plans and standards similar to plans applied by public servants, regardless of the facts about moral merit. [5] As a conceptual rival of utilitarianism, ethical moral theories explore the concept of duty with its correlative notions of rights and permission. An individual can determine the “correctness” of his or her action by examining whether it is required, prohibited, or permitted by a moral rule. By applying this concept to criminal law in normative legal theory, it is reflected when an act cannot be a crime unless it violates a moral duty and theories of retaliation for punishment. [7] While positive fact-based legal theory explains the causes and effects of the application of law, normative legal theory informs about what the law should be by navigating through the values and reasons underlying legal action, the enactment of legislation, and judicial law. Legal theorists use the word “normative” in its general sense, which includes legal norms, social norms, and moral norms. Normative legal theories are highly evaluative and closely related to moral and political theories.
An example that highlights the differences between positive legal theory and normative legal theory is presented by comparing their approaches to tort law. While positive theory attempts to explain what causal forces have produced the existing principles of tort, normative theory determines which rules of tortious liability would be most justified. [6] In a factual sense, Kelsen suggests that “the law is an order of human behavior.” By establishing similarities between order, customs, and etiquette, Kelsen suggests that the highly factual nature of law makes it an empirical phenomenon. The law is thus defined both as a social technique that forces those who are subject to it to a system of rules of conduct, and as an order that represents an expansive system of norms derived and validated for the same reason. An individual can thus determine whether a norm belongs to a normative system by determining that it derives its validity from the basic norm that forms the order. [10] In the normative sense, laws are defined as “what should be done when something should be.” Kelsen suggests that the normative statement “it`s a rule” can only make sense in the context of regular behavior, combined with a thoughtful and critical attitude of the population. In adopting this perspective, Kelsen ignores the specific “inner” dimension that conditions the meaning of normative statements that relate to human values and morality. [10] 7. External applicability is similar to what Waluchow calls institutional strength.
See ibid., p. 39. Indeed, external applicability and institutional strength can be seen as a conceptual reconstruction of the constraining nature of legal norms in a positivist framework. According to Waluchow, institutional power is a function of a person`s legal authority (if any) to amend the existing law in order to nullify its impact on certain decisions.
