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| Content Provider | Springer Nature Link |
|---|---|
| Author | Gizbert Studnicki, Tomasz Kliwski, Mateusz |
| Copyright Year | 2011 |
| Abstract | In this paper, we discuss the problem of the relationship between legal concepts and legal norms. We argue that one of the widespread theories of legal concepts, which we call ‘the embedding theory’, is false. The theory is based on the assumption that legal norms are central for any legal system and that each legal norm establishes an inferential link between a certain class of facts and a certain class of legal consequences. Alf Ross’s embedding theory was presented in his famous paper “Tu–Tu”. According to Ross, the sole function of legal concepts is to simplify normative information. Hence, the use of legal concepts may be a matter of convenience, rather than necessity. We criticize this approach mainly by pointing to the existence of so-called second order substantive concepts, which are not reducible to any determined set of conditional sentences (inferential links). In short, second order substantive concepts play the role of general standards, and general standards are used to provide flexibility for a particular legal system. In addition, general standards are ‘value loaded’, since they serve as a frame of reference for judges applying law to particular cases. To understand such general standards as a predefined set of conditionals means to overlook their ‘open’ content, and thus their function. In our opinion, the acceptance of the embedding theory means to misinterpret the function of general standards. We also argue that Giovani Sartor’s idea of defective legal concepts doesn’t help to clarify or defend the embedding theory. |
| Starting Page | 553 |
| Ending Page | 562 |
| Page Count | 10 |
| File Format | |
| ISSN | 09528059 |
| Journal | International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique |
| Volume Number | 25 |
| Issue Number | 4 |
| e-ISSN | 15728722 |
| Language | English |
| Publisher | Springer Netherlands |
| Publisher Date | 2011-10-07 |
| Publisher Place | Dordrecht |
| Access Restriction | One Nation One Subscription (ONOS) |
| Subject Keyword | Legal concepts Embedding theory Inferential link Intermediate legal concepts Formal legal concepts Substantive legal concepts Doctrinal commitment Defective concepts Constitutional standards Supranational standards Theories of Law, Philosophy of Law, Legal History Logic Philosophy of Law Sociolinguistics Applied Linguistics |
| Content Type | Text |
| Resource Type | Article |
| Subject | Law Linguistics and Language |
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