legal language lecture 2: the legal concept of law maciej pichlak university of wrocław faculty of...

Legal Language

Lecture 2:

THE LEGAL CONCEPT OF LAW

Maciej PichlakUniversity of Wrocław

Faculty of Law, Administration and EconomicsDepartment of Legal Theory and Philosophy of Law

Conflict of hermeneutics

Law as Dulcinea del Tobosco

Hermeneutics of suspicion

Hermenutics of reconstruction

Introduction to... what?

LAW

legal science (jurisprudence)normative system

legal practices

„Sources” of legal order

LAW

Legislation

Legaldoctrine

Legalpractice

Methodological perspectives

1. Linguistic

2. Sociological

3. Psychological

4. Axiological

Normative system

A set (system) of norms, which are (legally) valid

Terms to be explained:

* system

* validity

* norm

Normative system

Shrek

Principle

Law as a multi-layered system

'Typical' rules, that is legal provisions which are formulated in legal texts (or other traditional sources of law), creates only a 'surface-

level' of law.

Except this level, law includes also other components.

Law as a multi-layered system

Some ways of (theoretical) describing the multi-layered nature of modern law:

rules and principles (R. Dworkin)primary and secondary rules (H.L.A. Hart)normative conception of sources of law (Z. Ziembiński)

Three levels of the law

Theory of 'mature' modern law system

Surface levelLegal cultureDeep structure

Three levels of the law

Surface level

Legal provisions formulated in the texts of law-making instrument or other typical sources of law (e.g. judicial decisions).

The role of the doctrine of sources of law

Visible and turbulent part of law.

Three levels of the law

Legal culture

Culture of legal professionals. Legal culture sensu stricto and sensu largo.

Created by legal practices, legal science, legislator

Three levels of the law

methodical element (paths of legal reasoning)conceptual element (basic concepts of law)normative element (general legal principles)general doctrines

Components of legal culture

Methodical component

Normative conception of sources of lawAnswers to the question: 'What counts as a law?' or 'What specific legal rules are valid?'

validity rules

exegesis rules

Rules and principles

‘Typical' rules

validity: formal criteria ('test of pedigree')application: 'all or nothing' fashion

Principlesare a part of 'institutional morality'

validity: 'institutional acceptance'application: 'more or less' fashion (dimension of weight)

Three levels of the law

General features of (thinking about) law, common for all societies within cultural circle.

Despite of the need of holistic perspective, we can distinguish conceptual, normative and methodical elements.

Deep structure of law

Deep structure

Alternative interpretations of deep structure:

- Deontological (basic principles)

- Teleological (telos - moral ideal of law)

- Formal (basic formal qualities of law)

Three levels of the law

Discursive and practical knowledgeComponents of legal culture and their discursive expressions.

The role of deeper layers:they are preconditions of legal practicethey define the limits of lawthey are a yardstick for criticism of law