In both cases, the level of consistent voluntary adherence and the level of effective law-enforcement by state agencies are decisive. These two points of focus are now discussed in turn with reference to three scenarios. The scenarios call attention to the phenomena of what are here called lapsed, substituted and substituting law. In scenarios of this kind, the conduct of public office-bearers, in particular of officials who are part of the state administration, shows a pattern of deviation in conflict with the norms of positive law as articulated in the relevant legal norm-formulations.
The deviating conduct assumes a fixed pattern either not yet provided for or clearly disallowed by the legal norm-formulations of positive law. In pursuing the new practice office-bearers genuinely judge themselves to be legally bound to follow that pattern; that is, to behave in that particular manner because they ought to do so. Hence, their actual behaviour - usus - is accompanied by opinio iuris. Once that occurs, new substituting law comprising both the factual and the ideal components of law's dual structure is quite obviously in the process of being created.
Its establishment can be prevented only if effective measures to enforce the law articulated in the legal norm-formulations which is now under pressure from the substituting new practice can still be taken. However, if the relevant state agencies are not able to do that, or if they are acquiescent in such behaviour, thus tacitly consenting thereto tacitus consensus superioris 85 the disobeyed norm lapses into non-existence.
In the latter case, the new law replaces the old one with government as a passive, participating party. The old law ceases to exist as part of positive law and is replaced by the new law that has resulted from consistent, deviating conduct.
Essays on the Doctrinal Study of Law
If the old norm was part of the constitution, it ceases to be part of it, and is by the same token replaced by new constitutional law that has arisen from consistent deviating conduct. The replaced law may be called substituted law and the new law substituting law. This substitution occurs in spite of the fact that the norm-formulation that purports to signify an effective norm of positive law is still there.
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It also occurs in spite of asserting the constitution's supremacy and relying on a stability that forbids constitutional amendments or allows for constitutional amendments only upon compliance with strict amendment procedures. The norm-formulation in this scenario is misleading, because it is a misrepresentation of the law that is actually in existence.
The substitution that has taken place is not reflected in the legal norm-formulations that still have the appearance of the substituted instead of the substituting law. What has occurred in this scenario is that the law has changed without the legal formulation the text having effectuated such a change.
In this scenario, public office bearers transgress the norm articulated in legal norm-formulation on a large scale without, as in the first scenario, engaging in consistent deviating behaviour. Or there may be consistency in their deviating behaviour, yet without the bona fide belief that they are legally bound to act in that way.
There is usus but no accompanying opinio iuris. In this scenario, the existing law lapses without having been replaced by new law and a legal vacuum, that is, a field not governed by any positive law - a non liquet - is opening up. Since government - the legislature and the executive - might be acquiescent in such behaviour and thus be consenting to it, there is consensus superioris, which means that government is passively a party to such law, which may include the lapsing of "supreme" constitutional law into non-existence.
What occurs in this scenario is not different in principle from what happens in the previous two, yet is arguably even more incongruent with the trite doctrine of the rule of law and the supremacy of the constitution because the collective agent that creates substituting law or causes existing law to lapse is not agencies of the state but segments of the public; that is, the source of the substituting law, or of the law's falling by the wayside due to conduct is not only the law-making and law-changing and interpreting bodies of the state, but also sectors of the public.
The behaviour of segments of the public might stray on such a large scale from the positive law as articulated in the legal norm-formulations and the state may so widely fail to effectively enlist its coercive apparatus to remedy such deviations or transgressions or such apparatus may simply not be in existence that the positive law once again simply lapses. Depending on the actual socio-political realities, this may occur for longer or shorter periods and over smaller or larger territorial areas within a particular state. On condition that the usus and opinio iuris requirements for substituting customary law be met, such deviating behaviour may, as in the case of the scenario above, also give rise to substituting law, yet arguably in practice less readily than in cases where the agencies of the state through their action are the changing agents.
Conduct that deviates from the law is typical of even the most smoothly functioning constitutional dispensations.
H. L. A. Hart
It should be clear, therefore, that not all transgressions or deviating conduct would cause the existing law to lapse or to be replaced with new law. Hence, it is obviously not suggested that all deviations call the continued existence of legal norms into question. The outcome of such deviance is a matter of the degree of non-compliance or ineffectiveness, not of ineffectiveness or non-compliance as such. Precisely for that reason I indicated at the outset in part 2 that questions surrounding the factual dimension will tend not arise in smoothly functioning states with low levels of non-compliance, but rather in weak states with rapidly changing social and political conditions, and thus with low levels of voluntary obedience of law where the institutions of law enforcement are faltering and weak.
The need for considering the above scenarios can be traced back to the insightful observations of Georg Jellinek, who states that the factual continuously breeds new law. This would avoid the risk of being misled by the norm-formulations of the formally recognised sources of the law, on the actually prevailing condition of the law, especially when these formulations are in the misleading guise of descriptive sentences - that is, truth-asserting sentences as described in part 5 above. A distinction has to be drawn between what one might call the constitution of the formulations in contrast to the actual constitution.http://mail.mccurdycandler.com
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The latter, which is an expression of the actual relations of power, might be independent of the formal legal position. A reliable reflection of the actual constitution must therefore account for these non-formally recognised practices. It is significant that in spite of his pure theory of law that limits the analysis of positive law to the norms validly ordained by designated organs of state to make and amend law, Hans Kelsen expressly acknowledges the operation of the factual dimension in his analysis of the positive law.
It might even be more apt to say that Kelsen, in spite of his pure theory of law, cannot in the final analysis escape the law-creating and law-substituting force of the factual dimension when he acknowledged that the validity of norms depends in part on their effectivity, so that there has to be at least a minimum degree of obedience of the law for the law to remain valid. It is possible, says Kelsen, that a norm may forfeit its validity due to consistent disobedience.
If effectiveness in the developed sense is the condition for validity not only for the legal order as a whole but also for a single legal norm, then the law creating function of custom cannot be excluded by statutory law, at least not as far as the negative function of desuetude is concerned. The same is true for Hart, who formulates. On the one hand those rules of behaviour which are valid according to the system's ultimate criteria of validity must be generally obeyed, and, on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials.
JAG Griffith is specifically alive to the operation of the force of the factual dimension. He maintains that everything done in the belief that legally it ought to be done that is, with the necessary opinio iuris, which has a binding effect on people, is included in the constitution, regardless of what the text - the norm-formulations of the statutory instrument - that goes by the name constitution provides.
In this model the ever altering constitution undergoes consistent changes, as the constitution is finally that which is actually happening. And if nothing happens that would be constitutional also. What emerges clearly from this exposition is that a reliable grasp of the actual state of the positive law at any given time requires that the behaviour of state agencies and the public continuously be considered.
That may show that some ostensible rules of positive law are but paper rules, as Llewellyn 97 called them; that is, that some apparent norms are in fact no more than formulations words and sentences but not actual norms, and on that score not actual positive law. On the one extreme, in the smoothly functioning state with stable socio-political conditions the norms are largely voluntarily obeyed, and they are enforced by state agencies in the exceptional cases where they are not. Thereafter, however, follows a sliding scale of increased disregard of the norms up to the point where conforming conduct is so haphazard that only the norm-formulations - the paper rules - remain.
Once a certain level of disregard is reached, the norm lapses and only the formulation remains. A norm-formulation gets increasingly misleading as the actual deviating behaviour increases. It reaches the zenith of its deception when deviating conduct is at its worst.
In spite of the fact that the dominating socio-political forces, which once produced conforming conduct, have lapsed in favour of new forces and accompanying deviating conduct, the norm-formulation still falsely pretends that the lapsed norm - the substituted law - is in existence. It might be quite difficult to reliably determine whether the norm-formulation reflects the actually existing law, or whether under the cloak of these formulations the old law has already lapsed or has been replaced by new substituting law. The reason for this difficulty is that these changes occur largely tacitly.
Unlike formal amendments of the text of the constitution or legislation , they are not reflected in the changed text of the law, although they may in fact be much more profound than those that are recorded in the text. Thus Steven Griffin states:. One need not believe in rule-of-law constitutionalism to think that the changes in the role of the national government in the regulation of the economy proposed by President Roosevelt were so fundamental that they should have been authorized through appropriate constitutional amendments.
The New Deal changes were likely the most significant changes in the constitutional system made in the twentieth century, yet one cannot tell from the text of the Constitution that any changes occurred at all. Hence, new law, including new constitutional law, may be in existence in place of the substituted law long before it is actually realised that the change has in fact taken place.
In a state in which the leading socio-political forces underpin the legal norm-formulations of positive law including the constitution the behaviour of the inhabitants and public office-bears will largely correspond with these formulations. The norm-formulations will therefore largely be a reliable reflection of the actually prevailing law in such a state. In such a scenario, we have what in trite terms could be described as a well-functioning constitutional state Rechtsstaat.
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In the event of an inquiry into what the law in such a situation entails, it will suffice to consult the norm-formulation of the acknowledged sources of positive law. By the same token, a reliable image of the constitution could then be acquired solely with reference to the formulation of the statutory instrument s , more in particular the constitution act and its interpretation by the relevant authoritative bodies - primarily the courts.
Knowledge of the law and the constitution could in that case be acquired solely by consulting the legal norm-formulations of the acknowledged sources of positive law. On the basis of the assumption that the sources of law are fully constituted by the whole collection of norm-formulations of positive law, legal education in such a state consists entirely in systematically acquainting law students with such formulations.
But here is the rub - the first rub: at the moment of their promulgation the legal norm-formulations might correctly reflect social behaviour. However, from the time of their promulgation there might be discrepancies between the dominant socio-political forces and the accompanying behaviour by office-bearers and segments of the public, the latter being underpinned by dominant socio-political forces in the politico-constitutional dispensation concerned, but not reflected in the norm-formulations.
In that case, the legal norm-formulations might reflect a misrepresentation of the law from the moment of their promulgation. Here one has to be alive to the fact that the legal norm-formulations at the time of their promulgation reliably record the actual socio-political forces and accompanying behaviour does not mean that the formulations will remain such a reliable record in future because legal language - legal norm-formulations - are directive and influential, as Olivecrona has reminded us and as we have seen in parts 3 and 5.
For that reason it might reliably record the power relations of the immediate past yet be unable to predict the future.