Legal norms Flashcards
(26 cards)
Definition of legal norm?
Either a customary rule, so an unwritten fact generally recognised as binding upon the members of a certain political community.
Or an act posed by the competent public authority, the violation of which is met with some kind of public reaction, that is a sanction .
The role of the public authority entails the reference to the source of law.
The sanction might include but not necessarily a punishment.
Which are the features of legal norms?
- generality
- abstractness
- innovative character
- effectiveness
What differentiates customary rules from a statuary norm?
The former is a “fact”, an unwritten rule which is recognised by the community although not formally posed by an entitled authority.
The latter is instead a legal act, thus a written provision enacted by a statuary source of law.
What do the features of generality and abstractness have in common?
Both these features refer to the fact that norms are applicable to a certain abstract generality of people/cases.
So they do not address directly people/groups/situations…
To be distingueshed from the idiosyncratic(/exeptional) cases of ad-persnam, ad-hoc norms.
What differantiates the features of generality and abstractness?
The former refers mainly to the (generality of) the spatial dimension, the latter to the (abstractness of) the temporal dimensions of norms.
i.e. the norm is *not *applicable only to a specific space/time.
What is the “Innovative character” feature almost an axiomatic/tautological definition?
The feature refers to the fact that the norm’s entry into effect modifies the leagal order, i.e. introduces something (rule, etc.) “new”, “innovative”.
it wouldn’t make sense repeat a pre-existing rule/stautus quo.
Can an obsolete rule (that hasn’t been applied in a very long period of time) be defined properly a norm?
e.g. curfew in a small village which obliges young people to stay at home after 6 p.m.
Not properly, because the norm is not effective anymore. By effectiveness is meant the production of actual effects.
Who establishes the norm? From what does it derive its validity?
The source of law. The latter can be either **customary(/consuetudinary) ** or statutory.
in which form?
From what does customary law derieve its validity?
- Customary law derives from habits, conduct, unwritten agreements (upon individual acknoledgement):
* custome.
* convention.
* institutional practice.
which are the defining elements of the custom as a source of law?
One is objective: that is the repetition (the custom is repeated more than once).
The other is subjective or psychological: the abiding individual knows/is sure of the existence of the legal custom.
by psychological is not meant personal choice but (perceived)certainty
The two latin expressions are:
1. diurinitas = long duration.
2. opinio iuris ac necessitatis = the belief that a given conduct is right.**
What is a convention ?
an informal agreement between contracting parties
what is an institutional practice?
something that just happens
form? who? how?
From what statutory law derives its validity?
derives from a written provision adopted by a legislative authority, according to a procedure prescribed by the law.
What is the difference between provision and norm?
Whereas the provision is the written text encapsulating the rule, the norm is the rule derived from the provision.
provision: pieces or items of (written) law.
norm: the meanings assigned to the aformentioned items.
What problem does arise from the relationship bt norm and provision?
It is not a symmetrical relationship: from a single provision is not (necessarily) derived only one norm.
The provision might be equivocal - applied in different ways.
how is the norm derived from the provision?
Through the process of interpratation.
Interpretation applies only to statuory law, “interrpetation” (not proper) of customary law is based on facts, action, practical dimension
What does it mean that there are conflicting norms?
Either there are different interpretations of the same provision, or two (or more) norms addressing the same issue are held to be mutually incompatible.
How to solve conflicting norms?
There are different criteria for interpretation in the case of conflicting norms:
* hierarchy.
* chronological order.
* competence.
* scope.
Who devised a comprehensive version of “hierarchy of norms”? How is it structured ?
+ coming from additional reading
Hans Kelsen proposed an “hierarchy of norms” encompassing norm from all legal orders, framed in an overall theory of law. Each norm is placed in the correspoding hierarchical level on a pyramid of mutually interconnected norms.
how does the hierarchy criterium work?
The norm placed at an higher hierarchical level should prevail.
Annulment, ex tunc.
how does the chronological criterium work?
A norm governing a certain subject is superseded by a later norm binding the same parties. Consequence is the repeal (/abrogation), it operates ex-nunc.
i.e. if two norms are placed on the same hierarchy level, the most recent norm should prevail.
ex-nunc =the law is valid from now on, not the past (=ex-tunc).
how does the competence criterium work?
When the norms regulating the same subject matter are produced by two different authorities. The norm enacted by the competent authority should prevail.
Annulment, ex-tunc.
how does the scope criterium work?
A general norm is derogated by a more specific norm concerning the same position or situation.
Derogation, ex-nunc.
differences bt statute and common law: definition
from where does law derive?
- statute law = laws approved by legislative branch
- common law = collection of legal principles and rules derived from the decision of judges
