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Introduction to... what? LAW legal science (jurisprudence) normative system legal practices
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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