1 NORMS
OUR modern law is crystallized in a countless multitude of codes, statutes and orders, rulings of authorities and judgments of courts; and of contracts and other acts of private individuals. What is to be the law is set forth in writing and in print: so what had a merely subjective, nebulous existence in the mind of man is rendered objective. In this way the notions of the individual are removed from the control of his fluctuating psychology and are made permanent. The law appears thus to be established, stable and fixed; it becomes statute. (I)
Consider first the language in which law is embodied. The terminology of codes of law varies widely. Nowadays it is most usual to find the indicative mood: assertions, definitions and conditional statements. For example: âThe family relationship is established by the contract of marriageâ1 (2) (assertion)ââThe right of ownership is the legal power to dispose at will of the substance and fruits of an object, and to exclude all others from interfering with itâ2 (2a) (definition)ââWhosoever intentionally kills a man is guilty of murder and is liable to capital punishmentâ3 (3) (conditional statement). This kind of legal norm is very similar (4) in form to the law of physics that when the temperature drops, the mercury in a thermometer falls to a lower level. There is a formal analogy between the laws of nature and the rules of law: the former control the relations among natural objects, the latter regulate the relations among men; moreover, both appear to operate as superior and superhuman powers. The world would seem to be divided into a realm of reason and a realm of nature, the first governed by the rules of law (side by side with the rules of morality), and the second by laws of science. According to tradition both laws are of superhuman or divine origin.1
On closer investigation of the legal norm, however, we observe that the indicative changes into the imperative. In relation to murder, for example, the individual is told: âThou shalt not killâ, and further: âIf you have killed intentionally, you shall yourself suffer death.â The biblical imperatives âStone him!âââCrucify him!â are thus moulded into legal rules. And in relation to property the owner is told: âYou may dispose of the substance and fruits of your own property as you pleaseâ, and at the same time a command is given to all other members of the community: âNone of you is to limit or to interfere with the ownerâs pleasureâ. Every norm in its indicative form assumes a fetish-like character, akin to a law of nature, transcending the individual, superhuman, even divine. If the norm is resolved into imperatives directed to the individual and telling him âyou oughtâ, âyou ought notâ, âyou mayâ, âyou canâ, it appears immediately less unnatural, though still not acceptable as self-evident. The analogy with the law of nature is now meaningless, for nature knows no controlling common will, nor an individual will that is controlled.
The ancients usually spoke in direct imperatives when they recorded their norms in stone and metal, on papyrus and parchment, e.g. the code of Hamurabi, the Mosaic decalogue and the Twelve Tables of Rome.2
Such imperatives are the elements of the legal order. They are addressed to the individual and claim his obedience. Aiming at the will, they limit or enlarge, break or enhance the individual will (autonomy) and hence confront it as an extraneous will (heteronomy). This relation of wills is fundamental to the law, there is no mystery about it, nothing metaphysical, supernatural or divine. From the psychological and physical aspect, the highway robber who attacks the wayfarer in the wood with the alternative command of âYour money or your lifeâ attempts to impose his own will upon that of another person in the same way as the law seeks to impose its authority, with its instant readiness to apply civil sanctions or with the threat of punishment and criminal sanctions. How the authority of another person (the âheteronomous willâ) is imposed on the wishes of an individual (his âautonomous willâ) is a matter of common experience. He is coaxed or threatened, talked round or browbeaten; fraud and coercion, either physical or mental (hypnosis), play their part.
There is however, this mysterious difference: that in modern times all law is laid down, in the name of all citizens, by the state, conceived as an entity. Instead of one manâs will prevailing over the will of another, the common will is regarded as imposed upon that of the individual. How this common will arisesâfor it is clearly not the volonte generaleâis one of the fundamental problems of jurisprudence; but we need not concern ourselves with this question.
For the purpose of the present investigation we will take it for granted that the state lays down the law which confronts the subject as the common will and claims his obedience; we will not examine whether the state in this aspect is real, an actual entity, a person; nor will we enquire whether this unity of the state corresponds in any way with a real unity of the society within its borders.1 (5) Let it suffice that the legal order is in fact imposed upon the individual will of the citizens as a unified common will, and that in actual fact it operates as a unified whole. It is one of the most important functions of legal science to analyse the process by which a unified common will arises from a chaos of conflicting individual wills. But this analysis does not form part of our present task.
Of greater interest to us is another part of legal theory which I will call the analysis of positive law; distinguishing it as a separate branch from general legal theory, for it has its own functions and methodology. It is not the object of positive legal analysis to investigate the origin of the common will, its essence, its growth or decay. Its object is to analyse the legal norms contained in the sum total of positive legal provisions, arranging them in accordance with their inherent nature, and to reduce them to a system. For the chaotic multitude of norms can neither be understood nor expounded, neither taught nor applied, without previous co-ordination. We have to classify the norms according to their constituent elements, (6) which we will call âlegal characteristicsâ. Positive legal analysis distinguishes rules of private law and rules of public law, (7) and divides the former, in accordance with the particular relations of individual wills with which they are concerned, (8) into rules of the law of property, of obligations, of family relationships, and of succession. Such analysis treats a loan, for example, invariably as a relationship between the wills of two persons, creditor and debtor, concerning the giving and returning of an object; it pays no regard to whether the creditor exploits the debtorâas is usually the caseâor whether the debtor exploits the creditorâwhich may also happenâor to whether the loan concerns a debt of honour or a commercial credit. Positive legal analysis has no other task than to ascertain all the legal norms relevant to the facts and to apply them to the case in hand. This exhausts the function of positive legal analysis. The question how loan transactions collectively react upon the economic system, upon particular classes or upon society as a whole, in short the social effect of the norm, transcends its legal structure. (9) However interesting these social repercussions may be to the lawyer as a side-line, they are the province of the economist and sociologist. They lie outside the province of systematic legal analysis, just as the economic use of the tobacco leaf lies outside the province of botany. (10)