Essays on the Doctrinal Study of Law

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Evidence from the Wiretap Reports. This document was submitted as a dissertation in August in partial fulfillment of the requirements of the doctoral degree in public policy analysis at the Pardee RAND Graduate School. The faculty committee that supervised and approved the dissertation consisted of Edward Balkovich Chair , James Anderson, and Sasha Romanosky. The dissertations are supervised, reviewed, and approved by a Pardee RAND faculty committee overseeing each dissertation.

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Permission is given to duplicate this electronic document for personal use only, as long as it is unaltered and complete. Copies may not be duplicated for commercial purposes. Logical norm-descriptions formulate the logical entailments of empirical norm-descriptions.

Empirical norm-descriptions state what the literal content of legal norms is; non-empirical logical norm-descriptions take into account what straightforwardly follows from the content of the norm. For this reason we can say that the legal doctrinal statement that it is a valid norm of the Dutch Termination of Life on Request and Assisted Suicide Review Procedures Bill that cases of euthanasia carried out by nurses are to be judged by regional euthanasia review committees is a false norm-description since these committees are authorized to judge euthanasia only when it is carried out by medical doctors.

Legal doctrine can make this claim even before one of the committees has ever received a reporting of a nurse. In the same manner legal scholars could say, again before there has been a concrete case, that it is a true norm-description that these committees are authorized to judge euthanasia carried out on psychiatric patients. See the Annual Report in Dutch, , p. Obviously, as soon as one or more committees nevertheless consider themselves authorized to judge a case of euthanasia carried out by a nurse or when they consider themselves unauthorized to consider a case of euthanasia with respect to a mentally competent person with a psychiatric disorder, positive law changes and so does the truth value of legal doctrinal norm-descriptions of this part of law.

The first contra legem decision of a committee will probably result in an empirical norm-description stating that the content of the law is ambiguous on this point. However, when committees would stick to their new interpretation without being overruled by the legislator, positive law changes and the truth of both empirical and logical norm-descriptions will change accordingly. Norm-descriptions that are both semi-logical and semi-fictional 15 x In section 3. They do so by reference to the fairly specific and coherent set of intra-legal criteria that allows for a rational reconstruction of the positive legal order as an optimal internally coherent normative system.

So in the example just offered, after the first contra legem decision of a regional euthanasia review committee legal scholars could not only offer the empirical norm-description that the law has become ambiguous on this point, but they could also offer the non-empirical norm-description that the decision of the committee conflicts with the text of the law, the parliamentary history, et cetera and that therefore, when looked at from an intra-legal rational reconstructive perspective, the decision does not fit positive law.

In the remainder of this paper I ignore logical norm-descriptions. Norm-contentions are evaluative statements. They state which norms should be valid in the positive legal order under investigation or they state what the content of these norms should be. The assessment can be based on extra-legal criteria. These criteria can but need not form a coherent whole and they can but need not be shared by some legal officials in the community. For example, a legal scholar who argues against the validity of the Dutch Termination of Life on Request and Assisted Suicide Review Procedures Bill on the ground that it does not respect the sanctity of life would thereby offer a norm-contention since respect for the sanctity of life is not a principle recognised by Dutch law.

Legal scholars can try to persuade legal officials to take the same view on law and to change the law accordingly. There are two types of recommendations. I shall call them intra-legal and extra-legal recommendations respectively. Intra-legal norm-recommendations are offered on the basis of non-empirical norm-descriptions. Earlier I claimed that norm-contentions and norm-recommendations should only be side-line activities of legal scholars. I have to refine this claim. Intra-legal norm-recommendations follow from non-empirical norm-descriptions and therefore belong to the core-business of legal doctrine in the same manner in which theoretical and methodological recommendations of empirical scientists belong to the core-business of the empirical sciences. Extra-legal norm-recommendations are offered on the basis of norm-contentions and therefore they should belong to the side-line activities of legal scholars.

In the remainder of this paper I will discuss the nature of empirical norm-descriptions section 2 and non-empirical norm-descriptions section 3 in great depth.


I will only briefly discuss norm-contentions and norm-recommendations section 4. I conclude that the main part of legal doctrine consists of empirical and non-empirical norm-descriptions and that it is therefore descriptive in nature section 5. Empirical norm-descriptions are descriptive statements about the validity or the content of legal norms of a specific positive legal order, e. Niiniluoto points out that some of these norm-descriptions will consist of no more than a disjunction , i.

They too can often only offer a disjunctive or partial characterisation.

Kelsen's Doctrine of the Unity of Law

Although many readers will agree with me that these norm-descriptions truly are descriptions of positive law, they will probably object to my claim that these descriptions are empirical. In this section I rebut this objection. First note that my claim is that empirical norm-descriptions are empirical because they describe, or at least aim to describe, positive law, i.

When I say that legal scholars aim to describe law as an object in the social world or as a social object I do not say that they aim to describe law in action, i. Legal scholars focus on law in books, i. Nevertheless, the question what law in books is, is an empirical question. Just as knowledge about law in action is achieved by studying the behaviour of norm-addressees in the social world, knowledge of law in books is acquired by studying the linguistic behaviour of legal officials that also exists in the social world.

In section 3. When I want to know whether norm n 1 is an effective norm of positive legal order L, I have to observe the behaviour of norm subjects; when I want to know whether norm n 1 is a valid norm of positive legal order L, I have to observe the writings of legal officials. Readers will probably rebut that legal scholars do not observe, but rather interpret the text in law books. This is true, but it is not an objection to the analogy since the study of law in action is just as much a matter of interpretation as the study of law in books.

In section 2. Since many legal scholars and philosophers misunderstand the correspondence theory of truth, I must first explicate the correspondence-theoretical nature of the truth of legal doctrinal empirical norm-descriptions before I can turn to the notion of interpretation in section 2. There are at least two seemingly ineradicable misunderstandings about truth. However, the correspondence theory is not intended to answer the question how we know and justify that this sentence is true, i.

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Category Index Outline. Three categories are presented for convenience, though the subjects intertwine and overlap. Again, this should not necessarily be disqualifying. In Stroink, F. This argumentation should, however, not be regarded an assault on the notions of the rule of law and constitutional supremacy as such, as these notions are indispensable for well-functioning legal orders and the effective legal protection of individuals and communities. There are in all cases principles capable of providing a legally-based correct solution. Olivelle, Patrick

In order to answer that question one has to make empirical inquiries and check on incoherencies between the statements that are made about the state of affairs under investigation. The second misunderstanding about truth concerns the confusion of truth-conditions of sentences with their truth-values. Whereas the truth-conditions of empirical norm-descriptions are a matter of consensus among legal scholars, their truth-values depend on the question whether the content of the norm-descriptions corresponds to the content of the norms of the positive legal order.

Obviously, legal scholars can legitimately contest both the truth-conditions as well as the truth-value of particular norm-descriptions. However, as long as the content and the truth-conditions are sufficiently specific and the norm-description is about a norm of law in books, the truth-value of norm-descriptions is not a matter of consensus between legal scholars, but of correspondence between the statement about the norm and the norm in the social world.

Compatible con los siguientes dispositivos:

Peczenik , p. His claim, however, is based on a mistaken mixing of object-level law and theoretical level legal doctrine.

H. L. A. Hart

As with all descriptive theories, the aim of the descriptive part of legal doctrine is to achieve correspondence of the content of the statements of the legal doctrinal theory theoretical level with the content of the norms as they are formulated in statutes and as they show in the products of legal officials in the social world object level. The test as to whether this correspondence is achieved obviously cannot be found in correspondence between the theory and the world.

Knowledge of the relation has to be gained from the coherence of the statements. However this coherence is neither to be found on the object-level of law as a social object, nor between the object level and legal doctrinal level, but on the level of the legal doctrinal theory, i. Niiniluoto , p. Brouwer calls legal doctrinal empirical theories equivalent systematizations of law.

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An identical formulation is only informative if there is a lack of clarity about the precise formulation, for example because the source is not available. A first demand of such a systematisation is completeness ; the description should cover all of the part of the positive legal order under investigation. This does not imply that law itself must be complete. Obviously, a description of law can be complete by describing incompleteness in the law itself. A second demand is clarity and precision ; the descriptions should be as clear and as precise as possible.

This does not imply, again, that lack of clarity or imprecision in the law itself is eliminated.