Some Remarks on the Notions of Legal Order and Legal System

Ratio Juris. Vol. 6 No. 1 March 1993 (48-63)

Some Remarks on the Notions of Legal Order and Legal System

JOSE JUAN MORES0 and PABLO EUGENIO NAVARRO

Abstract. In this paper, the authors discuss some problems related to the existence and identity of legal norms and legal systems. Firstly, two criteria for identification of legal norms are analyzed: linguistic criteria and non-linguistic criteria. Secondly, the dynamics of legal systems and the distinction between legal system and legal order are examined (close to Raz's distinction between momentary legal system and legal system). Based on the logical relations of membership and inclusion, two ways of analysing the change of legal systems are suggested. Thirdly, a criterion for identification of legal orders (from Bulygin) is discussed and it is shown that this criterion does not explain adequately, on the one hand, the existence of some norms, i.e., customary norms; and, on the other, the existence of invalid norms; i.e., unconstitutional norms. The main conclusions of this paper are: (a) the concepts of legal system and legal order could not explain the existence of law in a given society; (b) the concepts of legal system and legal order could be considered models of rational normative systems.

I. Introduction

The concepts of "norms" and "legal system" are fundamental in most legal theories for two reasons: (i) the truth-value of normative propositions depends, basically, on the existence of norms.' To this effect, G . H. von Wright (1983a, 68) says:

One important type of answer to the question "Why ought (may, must not) this or that be done?" is the following: There is a nornz to the effect that this thing ought to (may, must not) be done. The existence of the norm is here the foundation or truth- ground of the normative statement.

' In some theories, the existence of norms is neither a necessary nor sufficient condition for the truth of normative propositions (cfr. Dworkin 1970; Raz 1980,209ff; Bulygin 1982a; Mazzarese 1991).

0 Basil Blackwell Ltd. 1 9 3 , 108 Cowley Road, Oxford OX4 IJF, UK and 238 Main Street, MA 02142, USA

Legal Order and Legal System 49

(ii) A way of giving proof of the existence of a legal norm N is to show that N belongs to a legal system S (Bulygin 1990, 36ff .).

The traditional way of throwing light on these concepts is to identify the features that characterize legal norms and then affirm that a legal system is a set of legal norms (Alchourron and Bulygin 1971, 59). One of the most important flaws in this conception is the reductionist tendency, since the heterogeneity of elements that form law requires criteria of identification for highly complex norms (Alchourron and Bulygin 1971, 59; MacCormick and Weinberger 1986, 18).

An alternative to the traditional conceptions is, assuming the concept of legal system, to define legal norms by means of the notion of membership. According to these conceptions, a norm N is legal if, and only if, it belongs to a legal system. Legal systems are a subclass of normative systems and their specific features are coercion, institutionalization, hierarchic organization, and so on. This point of view is expounded very clearly in the following statement by Raz (1986):

A rule is a legal rule because it belongs to a system of rules that has the character of law, though this rule is not distinguishable from a moral rule or another rule.

Nevertheless, clarifying the systematic nature of law is a complex task, which may give rise to the reconstruction of different concepts of legal system, e.g., a union of primary and secondary rules, a set of norms internally related, a set of normative statements that contains all its logical consequences, a set of norms whose ground of validity is a basic norm, etc. Faced with all these different concepts of legal system and the different criteria of norm membership, it is obvious that normative propositions can receive different truth-values according to the reference system. In this sense, the identification of a system is strongly associated with the choice of a theory of law; that is to say, a way of reconstructing a material called ”law.” For instance, a Kelsenian theoretician would organize the legal material in a different way from a legal philosopher applying Raz’s theory.

Positivist theories must also face the problems arising from the dynamic character of law, mainly the problem of the existence and identity of a legal system through time.

The most important aims of this paper are some problems related to the existence and identity of legal systems. In (11) we analyze the identity of legal systems, in (111) we talk about some aspects of the dynamics of systems, in (IV) we analyze a criterion of identification of a legal order and in (V) we connect the problem of identification of legal norms with a model of legal order.

C Basil Blackwell Ltd 1993

50 JosP Juan Moreso and Pablo Eugenio Navarro

11. Identity of Legal Systems

Discussion of the criteria of identification of norms is unavoidable when legal systems are considered as sets of norms, since the identity of a set is defined by the identity of its elements. In this sense, Alchourron and Bulygin maintain (1976, 7):

If legal order is conceived as a set of norms, it is self-evident that it cannot change without losing its identity. Every time a new norm is created or a norm belonging to the order is derogated, we obtain a new set, different from the previous one.

The criteria of identification of norms proposed by legal theories can be classified into two groups:

(i) Nonlinguistic Criteria Legal norms are identified assuming specific features ascribed to law, e.g., coercion, heteronomy, normative relationship, etc. (Kelsen 1945, 71; von Wright 1963, 117ff.; Raz 1970, 70ff.; Nino 1985, 201).

(ii) Linguistic Criteria In the relationship between norms and language it is possible to distinguish three criteria of identification: syntactic (the identity of the norm is a function of the identity of the norm-formulation); semantic (the identity of the norm is a function of the identity of the meaning conferred on a norm-formulation) and mixed (the identity of the norm is a function of the identity of the relationship between norm-formulation and meaning) (Bulygin 1986, 194; Caracciolo 1988, 28ff .).

Therefore, the application of the formal criterion of identity of legal systems emphasized by Alchourron and Bulygin requires the choice of a criterion of identification. The statement “the legal system LS has been modified in a time t” has different meanings depending on the chosen criterion. This can be explained in the following way. A norm-authority enacts a norm-formulation N with a meaning M. If another authority enacts N’ with a meaning M the system LS remains unchanged in relation to the semantic criterion. On the other hand, the application of the syntactic criterion or the mixed criterion leads to the identification of a new legal system.

Beyond these remarks, it is necessary to solve the following problem: Though legal systems may change through time (since new norms may be enacted, others may be abolished, etc.), prima facie the legal system (Spanish, French, etc.) maintains its identity through time.

The distinction between momentary legal system and legal system can be useful to solve this difficulty (Raz 1970, 34-35): (MLS) Momentary legal system is a set of norms belonging to a legal system in a particular time t. 0 Basrl Blackwell Ltd 1993


Nevertheless, the statement about the existence of a momentary legal system must be carefully distinguished from the statement about a moment of a legal system.

The phrase: ”the English legal system in the Victorian period” does not identify a momentary system, though it selects a temporal segment t of the English legal system, e.g., the Victorian period. This means that a momentary system always exists in a temporal segment t, although the reciprocal implication can be questioned. More than one momentary system can exist in a temporal segment t and, further, in a temporal segment t there may exist no momentary system at all. Before assessing this possibility it is necessary to analyze the concept of legal system.

Raz‘s notion of legal system is ambiguous (Bulygin 1982b, 80). On the one hand, he assures us that momentary legal systems belong to a legal system and, on the other, he maintains that a momentary legal system is a subclass of a legal system.

Let us make the most of this ambiguous characterization by using the notions of membership and inclusion in order to develop two different possibilities:

A) The first characterization assumes that a legal system, which we shall call legal order, is a sequence of momentary legal systems, hereafter referred to as legal systems. A legal system S, belongs to the order 0, if it satisfies a condition of membership P, e.g., legality of the change of norms.

In this sense, Bulygin (1982b, 67) affirms:

Each time a new norm becomes a member of a legal system we obtain a different system, for the set of norms that are members of it is different (unless the new norm is completely redundant-in which case it could scarcely be regarded as a ”new” norm).

Nevertheless, according to this distinction (which presupposes a semantic criterion of identification) it cannot be maintained that a norm N belongs to a legal order LO. Instead, we have to say that the norm N belongs to a legal system LS, which, at the same time, is a member of the legal order LO.’

Accordingly, Raz’s statement (Raz 1970, 35):

It is logically impossible for a legal system to contain any empty momentary system. In other words, there is no moment at which a legal system exists but has no laws valid at that moment.

is somewhat plausible.

* The relation of membership is not transitive. For instance, although Kelsen is a member of the Viennese School and this School is a member of the class of the legal-philosophy schools, it is not true that Kelsen belongs to the set of legal-philosophy schools, for Kelsen is not a School but a member of a School.

0 Basil Blackwell Ltd. 1993.

52 Jose Juan Moreso and Pablo Eugenio Navarro

However, Raz is not very clear and his statement must be reformulated. It is logically impossible (because of the definition of normative system) that a normative system could be an empty system, whether momentary, non-momentary, legal or moral. If the system has norms then it is not empty, but if the system has no norms then it is not a normative system. Raz’s statement becomes plausible when we implicitly identify a momentary system S, with a statement about a temporal segment t in the existence of a legal order. In this sense, it is logically impossible to affirm that two legal systems LS and LS’ belong to the same legal order LO if it is possible to find a temporal segment t between LS and LS‘ with no momentary systems at all.

B) The second characterization assumes that a legal system LS is a subset (is included in) of a legal order LO. A legal order LO is a set of norms and a legal system LS is a subset of LO at a particular moment t. Furthermore, a norm N, belongs to a legal order LO if and only if, it satisfies a specific membership condition C (e.g., validity). The same norm N, may not belong to LO at a later time if it does not satisfy C any more. What differentiates the members of each subset is the possession of a distinctive characteristic C in different moments t,, t,, . . ., t,. For instance, if the set of human beings is H, we may say that Kelsen belongs to the subset H, in the year 1970, Kelsen belongs to H because H, is included in H, even if it does not belong to a subsequent subset H,,, in the year 1990.

Similarly, a norm N, can belong to the subset S,, in the moment t,, the subset S, being included in LO, and not belonging (e.g., for not being valid) to the subset S,,, in the moment t,,,. Relative to this characterization, Raz’s statement that it is logically impossible to identify empty momentary legal systems is also questionable. A trivial consequence of the definition of inclusion among sets is that the empty set (no matter what the empty set of norms may be) is included in every set. However, it could be argued that, although the empty set may be a subset of any legal order, no subset of a legal order in a given time t is empty.

111. Dynamics of Legal Systems

Both characterizations of the legal systems presented above allow the combination of the change of legal systems with the identity of the legal order. However, the explanation of the change is different.

A) As for the first characterization, according to which legal systems are members of the legal order, the basic problem is to explain how some norms that belonged to other previous legal systems, also belong to the subsequent system. Therefore it is necessary to postulate the following principle of persistence of law (Hart 1961, 60-64; Alchourr6n and Bulygin 1981, 101):

PPL: If a norm N, belongs to legal system S,, then it belongs to all legal systems subsequent to S, until its elimination.

0 Basil Blackwell Ltd. 1993

Legal Order and Lega! System 53

This way, it is possible to explain in what sense legal systems change, and in what sense the legal order expands starting from the contraction or expansion of the legal systems (Alchourrcin and Bulygin 1976, 9ff.).

B) As for the characterization of legal systems as subsets of the legal order, the problem is rather how a new norm Ni appears in the legal order. Here it is necessary to postulate a different principle of persistence, which we shall call PPL‘:

PPL’: A norm N, belongs to the legal order LO in the moment t,, if and only if it is introduced in a moment t previous or equal to t, and it is not eliminated in any moment t’ subsequent to t and previous or equal to t,.

11: this case, the legal order LO in a given time ti is always an expansion or contraction of the same legal order LO in a time ti-l previous to ti. It may be tempting to state that both explanations of the relationship between legal system and legal order are simply two different ways of saying the same thing. Nevertheless, our aim is to point out that is not possible to understand the nature of the legal order without making explicit its logical features, since the selection and resolution of particular problems can depend on the election of a specific conception of legal order. In this sense it is advisable to accept a “principle of tolerance” and promote the investigation of both conceptions. From now on, and yielding to the weight of tradition, we shall concentrate on the analysis of the membership relation between legal systems and legal order.

IV. Criteria of Identification

The difference between “legal system” and “legal order” makes it necessary to identify a criterion of existence for legal systems. This is because a system Si, originated at time ti, can be “ephemeral,” i.e., substituted by a system Si, soon after t,. The existence of Si is not necessarily a ”social fact,” and then, it becomes essential to state in what sense of “existence” the statement “the system S exists in a time t” is true (Navarro 1990,71-78). Like legal norms, the existence of a system S can be considered a function of the membership of S in a legal order LO. Therefore, verifying the existence of a system S presupposes a criterion of identification of legal orders. Recently, E. Bulygin (1991,263-64) proposed the following criterion of identification:

We are in a position to formulate the following criterion of identification of a given legal order 0,: (1) The set of norms (N,, N,, . . ., N,) is the originating system (first constitution) of 0,. (2) If a norm N, is valid in a system S, that belongs to 0,, and N, empowers the authority x to enact the norm N, and x enacts the norm N, at time t, then N, is valid

0 Basil Blackwell Ltd. 19Y3.

54 Jose Iuan Moreso and Pablo Eugenio Nauarro

in the system S,,, (that is to say, in the system at moment following t) that belongs to 0,. (3) If a norm N, is valid in a system S, that belongs to 0,, and N, empowers the authority x to derogate the norm N,, which is valid in S,, and x derogates N, at time t, then N, is not valid in the system S,,, (the system at next moment to t) that belongs to 0,. (4) The valid norms in a system S,, that belongs to 0,, and that have not been derogated at time t, are valid in the system S,+, of 0, (at next moment to t). (5) All logical consequences of valid norms in a system S,, which belongs to 0,, are also valid in S,.

The definitional scheme proposed by Bulygin deserves attention because it gives an answer to the following questions:

a) the criterion of membership of the originating system So to the legal order 0,;

b) the criterion of membership to 0, of the systems which are successive to s,;

c) the criterion of introduction and elimination of norms in the legal

d) the structure of legal systems. Rule (1) identifies the legal order 0, and the originating system So, rules

(2) to (5) identify the structure of the order. Rules (2), (3) and (4) explain the dynamic character of the order (rule (4) expresses the principle of persistence PPL) and rule (5) gives systematic character to the different legal systems belonging to the order. By means of this definitional scheme it is possible to reconstruct a use of the expression “legal order.” Nevertheless, it is important to point out some problems related to this reconstruction:

s ys tems;

(a) The Identification of the Originating Constitution According to (l), the identity of order depends on the systems belonging to it, and any illegal change of the constitution implies the appearance of a new legal order. This is because the new system-resultant of the invalid norm-cannot found its existence on the originating system. The problem is the following: When does an inconstitutional (invalid) norm entail the collapse of the legal order and result in the formation of a new originating system? It is necessary to emphasize that it makes sense to affirm that a new legal order exists only because the invalid norm is enough to give rise to a new originating system. Therefore, is a legal order LO, replaced by another LOz every time an inconstitutional norm is promulgated? A possible answer, stated by von Wright (1963,203) is to affirm that invalid norms mark a recession from the system and do not imply a change of legal order (we consider this answer in section c) when we shall analyze closely the problem of invalid norms). @ Basil Blackwell Ltd. 1993


A “realist” answer would be to admit that if inconstitutional norms are effective, then legal order is modified and they constitute a new originating system. Another possible answer is to introduce a criterion of relevancy (CR) and to select a ”basic core” whose illegal modification implies a change of legal order. The obvious objection to this alternative is the difficulty in justifying a CR intersubjectively.

In the cases of change of legal order, some of the norms of the previous order are part of the systems of the new legal order and, therefore, the criterion of identification proposed requires a modification. This is what Kelsen called recqfion of norms (Kelsen 1945, 139). Perhaps a generalization of the principle of persistence should be included in the criterion of identification with the following contents (cfr. Finnis 1973, 63; Herniindez Marin 1984, 21):

If a norm N, belongs to a system S,, which is a member of an order 0,, then it belongs to all legal systems successive to S, of all legal orders successive to 0, until its elimination.

b) Derogato y Provisions Between the norm Nj that empowers the authority x to create the norm N, and the creation of Nk there is no other interfering norm. However, between the norm N, that empowers the authority x to derogate Nk and the derogation of Nk, an additional provision exists, the one which says: “The norm Nk is derogated.” This fact has led some theoreticians3 to maintain that such provisions do not belong to any legal system in the sequence of systems. Nevertheless, derogatory provisions are also promulgated and belong to the legal systems. We could argue that derogatory provisions have a ”brief” existence. As Kelsen (1973, 262) wrote:

If it [the derogating norm] has fulfilled its function, that is to say, if the norm to which it relates has lost its validity, then also the derogating norm . . . will lose its validity.

Kelsen adds that trying to derogate a derogatory provision would make no sense (but see Finnis 1973, 61). This point also suggests that derogatory provisions do not belong to any legal system.

Nevertheless, this ”brief” existence of the derogatory provisions remains without a clear explanation because, if ”existence“ does not stand for ”membership,” then we could not say, contrary to common usage, that a derogating disposition is valid or invalid.

’ In this sense Bentham (1970, 233) wrote: “As to deobligative [derogating laws], in a regular body of law there will be neither need nor room for them: their only business is to destroy others: and they perish when they have performed their office.”


56 Josk Juan Moreso and Pablo Eugenio Navarro

c) Criteria of Legality and Deducibility Clauses (2), (3), (4) and (5) establish the structure of the legal order and are used to fix the criteria of membership of a norm in a legal system. Clause (1) fixes the criterion of membership of independent norms, clauses (2), (3) and (4) establish the criterion of legality which confers dynamic character to the legal order, and clause (5) establishes the criterion of deducibility (cfr. Caracciolo 1988, 31-35).

According to the criterion of legality, invalid norms (inconstitutional laws, sentences contra legem, etc.) cannot belong to any legal system. Bulygin admits this point, and suggests distinguishing clearly between the notion of membership and applicability (Bulygin 1982b, 68-71; 1991, 266-68). It is possible that a norm does not belong to a legal system S, and that despite this fact, it may be applicable in the time t. For instance, in most criminal codes the judge must apply the less severe criminal norm between the moment when an offence is committed and the moment of decision. This way, a norm of a legal system St-", which has already been derogated at time t may be applicable. It is even possible for norms that have never belonged to any legal system of the legal order in question to be appli~able.~ Bulygin affirms that the same goes for invalid norms enacted by an incompetent authority. In the case of aninconstitutiond law, he affirms (1991,267):

Such an inconstitutional law can be applicable, for instance, if the Constitutional Court found it constitutional. However, the constitutionality of a law does not depend on what the Constitutional Court said; and a law not enacted by a competent authority is still unconstitutional even if the Court embraces the opposite position. But what determines the applicability of law is the decision of the Constitutional Court. If the Court says (wrongly) that the law is constitutional, such law will be applicable, even if it is not valid in the system.

Although it is necessary to distinguish the notions of membership and applicability, we must emphasize that there are important differences between an inconstitutional law and a derogated but less severe criminal law or an applicable foreign law. On the one hand, while the first can be derogated, it makes no sense to think about the derogation of the other two: It is not possible to derogate a derogated norm or a norm belonging to a foreign legal ~ y s t e m . ~ On the other hand, a judge is obliged in a time t to apply a set of norms by virtue of a criterion of applicability belonging to the legal system at time t. It would be strange, though, to maintain that the criterion of applicability obliges judges to apply inconstitutional norms (not belonging to the system) and, simultaneously demand judges to legally

' In most states the courts must apply norms that belong to foreign legal systems, identified through theirrulesof conflict of laws, according to International Private Law (cfr. Raz 1979,119).

It could be argued that there are two senses of "derogation": the elimination of membership and the expiration of applicability, although the latter is similar to an hypothesis ad hoc.

@ Basil Blackwell Ltd 1993


found their decision. If a norm N is invalid, then it does not belong to any Sj and, therefore, N is not a legal norm. If sentence S is founded on N, then S lacks legal foundation.

There is an additional problem, a legal decision may be invalid not only for having a content opposed to the general norms, but also for being promulgated by an incompetent authority (Hart 1961,30). In the last case, the norm that a judge enacts can belong to the system as a derivative norm, by virtue of the principle of deducibility. But, by virtue of the principle of legality the norm is invalid and it does not belong to the system. If the criterion of identification of norms is semantic,6 then the individual norm S expressed in the sentence has incompatible properties: S belongs to the system (because of the principle of deducibility) and S does not belong to the system (because of the principle of legality). A way of solving this difficulty is to abandon the semantic criterion of identification and to point out that, in the case of a sentence contra Zegem, the individual norm belongs to the system as a non-formulated norm and the norm-formulation given by the judge does not belong to the system. The advantage of distinguishing7 between formulated norms and non-formulated norms becomes clear when we consider the following asymmetry in their conditions of elimination: For a formulated norm N to leave the system the elimination of the norm of competence that constituted the foundation of N is neither necessary nor sufficient; but for a non-formulated norm N’ the elimination of the norms that imply N’ is necessary and sufficient. In this sense, this line of argument can lead to a mixed criterion of identification of norms (Bulygin 1986, 203) and to a concept of competence which would cover: (i) the ability to alter the conceptual content of the system and (ii) the ability to alter the formulation of the system.

A possible solution to the problem of invalid norms (and therefore to the problem of identification of the originating system), can come from the distinction between three notions: to be in force, validity and applicability. The first two have been distinguished clearly by von Wright (1983a, 72):*

It is one of the uses of the terms ’‘valid’’ and “invalid” in legal and other normative contexts to say of a norm, the giving of which is permitted by norm, that is valid and of a norm, the giving of which is prohibited by a norm, that is invalid. In particular this

‘ For a development in detail of this principle of identification, see Alchourron and Bulygin (1983, l l f f . ) . ’ Possibly, the lack of a clear distinction on this point leads Caracciolo (1988, 64) to maintain that, if the criteria of legality and deducibility are both necessary and sufficient for norms to belong to a system S, then S is inmodifiable. It is clear that if the norms “ p + q” and ”p” are formulated in S, then “q” do not belong to S and, therefore, its promulgation by a competent authority modifies the formulation of the system and gives rise to a system ’5‘.

Cfr. also von Wright (1963, 195-%). Other authors distinguish between “to be in force” (Geltung) and “validity” (Giiltigkeit) in a similar way to the one presented here (Hoerster 1983, 585-96; Kliemt 1986, 193-95; Ferrajoli 1989, 353ff.: “in vigore” and “validitu”).

0 Basil Blackwell Ltd 1993

58 lose' Iuan Moreso and Pablo Eugenio Navarro

use of "invalid" is common. That a norm is invalid often means that the authority, who issued it, transgressed its competence as determined by law. There is also another use to be noted of "valid" and "invalid" as attributes of norms. Then the terms mean the same as "in force" and "not in force" respectively. To say that a norm is in force is another way of saying that it exists. To say that it is not in force is usually to say that it no longer exists.'

The conditions under which it is true to affirm that a norm N is in force are difficult to enumerate accurately since they are founded on complex prac- tices of members of a social group. In this sense, that N is in force can be considered to be a function of the social existence of N. Nevertheless, the social character of N can be too strong a requirement since, perhaps, some inconstitutional norms have no significance among the members of a community. But the problem that we must face is the following: Why is it necessary to derogate an inconstitutional norm while nobody seriously considers the derogation or application of a norm enacted by a fool or an actor on stage? If "promulgation" of a norm only means the formulation in a language, then both the inconstitutional norm and the norm dictated by the actor on stage are promulgated norms. This is why we think it appropriate to introduce a concept of "being in force" to represent a state of things that goes beyond the formal existence of a norm. The analysis of the concept of "being in force" faces similar complications to the analysis of the concept of promise as regards the difficulty of establishing the necessary and sufficient conditions to apply the concept: the necessary and sufficient conditions of the act of promising (cfr. Searle 1969, ch. 3). It can be said, that a norm N is in force if and only if N has been promulgated successfully. To determine the conditions in which a norm N is successfully promulgated is to define the conditions under which a (legal) norm exists socially."

It is important to say that the point in discussion is not centred on the existence of this kind of invalid norms," but on the selection of criteria of

' With the introduction of the notion "to be in force" it can be said that a foreign norm is (a) not in force, (b) invalid, (c) applicable in some cases whereas an inconstitutional norm is (a) in force, (b) invalid and (c) applicable.

See this parallelism between to promise and to promulgate norms in von Wright (1963,

" Bulygin distinguishes clearly between several senses of existence of norms: One of them is the social existence of the norms and other, ever weaker, which he calls "formal existence" for which the enunciation of a normative sentence (Bulygin 1990,3748) is enough. In the particular case of inconstitutional norms, Alchourr6n and Bulygin (1989,673) write: "It is true that jurists are usually interested in those norms which exist and are valid, but in some contexts they also consider invalid (though existing) norms. The typical case is that of an inconstitutional law, i.e., a law issued by the legislator (and so existing), but whose issuing is forbidden by the Constitution. Such a law is invalid, but no jurist would say that it does not exist. Precisely because it exists we are interested in its annulment, which may require a complex procedure. But no jurist would care to annul a norm which does not exist, i.e., which has not been promulgated. A nonexistent norm is not a norm, but an invalid norm certainly is a norm, provided it has been promulgated."

116-17).



law membership. If law is considered a system, then a criterion of membership in the system which allows the membership of an invalid norm cannot be included because this, among other reasons, would make the system contradictory. On the other hand, if law is considered a set of norms, without presupposing that any structure of this set exists, the membership of invalid norms does not present any problem and ”to be in force” can be a sufficient membership criterion.

Thus, the discussion is not about facts: It is accepted that invalid norms exist; but about the most suitable conceptual reconstruction. In this sense, it could be thought that the controversy is about words: For one conception invalid norms are not legal - in the sense that they do not belong to any legal system-, for the other conception invalid norms are legal-provided the criterion of membership in the set of legal norms is ”to be in force”-. However a different approach to the problem of the existence of law in a society underlies the controversy. The concept of “being in force” allows a descriptive approach which does not presuppose that law has a systematic structure. Instead, the notion of validity now has a normative dimension, since it establishes determined parameters capable of evaluating the suit- ability of the normative sets.

V. Legal Order and Legal System

The explanation of the dynamics of legal systems is founded on the introduction and elimination of legal norms and therefore it is essential to rely on criteria of identification. One of the most widespread criteria maintains that the existence of a norm depends on an act of will in order to guide the behaviour of individuals; that is: a normative action. Although its flaws and limits are well known, the simplicity and deepness of this idea constitutes an important reference because it provides a model of legal system and order (von Wright 1980, 408). In this sense, Bulygin says (1991, 263):

To every temporal interval between two normative acts corresponds a system and that every act of promulgation and every act of derogation (done by a competent authority) give rise to a new system which integrates the series. (Italics are ours)

On the other hand, Caracciolo (1988, 67) affirms:

A legal order may be thought of as a discrete temporal series where the change from a system S to another S’ is produced as a result of acts that happen in an intermediate time interval. Such acts may also consist of the replacement of norms, that is, of the simultaneous derogation and promulgation. (Italics are ours)

Starting from this characterization of legal order, the criterion of legality can be considered the defining property of the membership of the legal system


60 Jose Iuan Moreso and Pablo Eugenio Navarro

in the legal order. This criterion can be enunciated as follows (see Caracciolo 1988, 68; Bulygin 1991, 262):

Criterion of membership (CP): 1) A legal system S, belongs to the legal order 0 if and only if: a) New norms from S,, in relation to the content of the former system St.l that belongs to 0, have been promulgated by means of authorized acts by norms that belong to S,-,; b) Norms from S,., that do not belong to ’3, have been derogated by authorized acts of norms of S,-,.

The principle of legality may also be of use to define intersystematic relations (see Caracciolo 1988, 68-69):

2) A system S, is inferior to S,-l if and only if: a‘) One of its norms has been promulgated in accordance with norms from St.,; b’) A norm has been derogated in accordance with norms from S,-l when changing to s,.

Nevertheless, both points (1 and 2) are questionable due to the strong dependence of the model on the acts of the normative authorities. We can raise the following objections:

(i) In the cases of customary laws or of norms that self-limit its sphere of temporal validity, the substitution of the systems cannot be analyzed with the proposed criteria, since there are no normative acts in the change of a system SJ,-~ to Si. Consequently, according to CM, the systems originated with the kind of norms mentioned above do not belong to the legal order;

(ii) An attempt to save these difficulties is to break the dependence between systems and normative actions. From the semantic perspective of identification of norms, normative actions are not necessary or sufficient to modify the conceptual contents of the system. On the one hand, the system is not usually modified in the case of promulgation of a redundant norm or of derogation of norm-formulation (formal derogation). On the other hand, in the cases of customary laws and self-limitation of the sphere of temporal validity, the conceptual content of the system is modified without an act of promulgation or derogation. But this entails laying aside the principle of legality as a necessary condition for the membership of a system in the order 0. It must also be pointed out that, in this case, the principle of legality cannot define the intersystematic relations (“superior-inferior”). In order to show this difficulty it is necessary to remember the following affirmation by Eulygin (1982b, 67):

No two consecutive systems are identical, but the non-consecutive systems need not be different, though they usually are, as a matter of fact, different. 0 Basil Blackwell Ltd. 1993.


Therefore, a system So is superior to S, as a result of the promulgation of N according to So, S, is superior to Sz as a result of the derogation of N according to s, and S2 can be identical to So as a result of having the same normative contents. This situation can be represented in the following way: So > S,; S , > S2 and So = S,. At this stage we are facing the following alternatives: (1) the system S, is superior and inferior to So and S,, So and S2 being equivalent; (2) the relation of hierarchy is not transitive, irreflexive or asymmetrical.”

VI. Conclusions

a) Promulgation and derogation are common ways of substituting systems, but are not necessary or sufficient to change legal systems. This does not mean that the actions and attitudes of the normative authorities are irrelev- ant. On the contrary, in the case of peaceful emancipation of a new state the differences between the legal order of the metropolis and of the former colony may not only be established by analyzing the relations of legality, but also by the attitudes of the subjects and authorities (Raz 1970,102ff .). In this sense, the relations of legality between the norms of the successive systems are not necessary or sufficient for the identity of the legal order. On the contrary, it will depend on the attitudes of the subjects and authorities before the relations of legality are broken. In the emancipation of a colony the relations of legality are maintained but not the identity of the legal order. In some cases, such as when the Argentine constitution of 1853 was illegally reformed in 1860, subjects and authorities do not distinguish between different legal orders.

b) The criterion of legality is too strict since it does not allow the identification of invalid norms which belong to a normative set. The criterion of deducibility, on the other hand, is too wide since any legal system S, will contain infinite norms and, in the case of inconsistence, every norm belongs to 5,.

c) A descriptive approach to a set of legal norms in a time t, perhaps, does not allow the establishment of any structure in such a set, that is: The sets of norms in a given time would not have a systematic structure.

d) The criteria of legality and deducibility (and others such as those of hierarchy, completeness, etc.) can be relevant criteria to define a rational legal order (cfr. von Wright 1983b, 130-209).

e) Finally, if the goal of legal philosophy is to reconstruct the criteria used to identify legal order, it is limited where there is no clear or consistent use

I2 Perhaps the relation of hierarchy between legal systems, conceived as a relation of strict partial order (an irreflexive, asymmetrical and transitive relation) is R model of rational legal order, but it is of no use to describe the relations between existing legal systems (cfr. Bulygin 1982b, 79, with regard to the relations of hierarchy between applicable norms, that can be translated to the relations of hierarchy between systems belonging to a legal order).


62 JosP Juan Moreso and Pablo Eugenio Nauarro

of such criteria in everyday practice. Beyond this point it only remains to choose definitions and propose a normative model of legal order, and, in this sense, legal order is an ideal state of affairs.

(for J. J. Moreso) Autonomous University of Barcelona

Faculty of Law 08193 Bellaterra (Barcelona)

Spain

(for P. E. Navarro) University of Girona

Faculty of Law 17007 Girona

Spain

References

Alchourrh, Carlos E., and Eugenio Bulygin. 1971. Normative Systems. Vienna:

-. 1976. Sobre el concept0 de orden juridico. Cn'tica 8: 3-21. Springer.

. 1981. The Expressive Conception of Norms. In New Studies in Deontic Logic. Ed. R. Hilpinen, 95-121. Dordrecht: Reidel.

. 1983. Definiciones y normas. In El lenguaje del derecho. Homenaje a G. R. Carrid. Ed. E. Bulygin, M. D. Farrell, C. S. Nino, and E. A. Rabossi, 11-42. Buenos Aires: Abeledo Perrot.

. 1989. Von Wright on Deontic Logic and the Philosophy of Law. In The Philosophy of Georg Henrik von Wright. Ed. P. A. Schilpp and L. E. Hahn, 665-93. La Salle Ill. : Open Court.

Bentham, Jeremy. 1970. Of Laws in General. Ed. H. L. A. Hart. London: Athlone Press.

Bulygin, Eugenio. 1982a. Norms, Normative Propositions and Legal Statements. In Contemporary Philosophy. A New Survey. Vol. 3: Philosophy of Action. Ed. G . Floistad, 107-25. The Hague: Martinus Nijhof.

. 1982b. Time and Validity. In Deontic Logic, Computational Linguistics and Legal Information Systems. Ed. A. A. Martino, 65-82. Amsterdam: North Holland.

. 1986. Legal Dogmatics and the Systematization of Law. In Vernunft und Erfahrung im Rechtsdenken der Gegenwart. Ed. T. Eckhoff, L. M. Friedman, and J. Uusitalo, 193-210. Berlin: Duncker & Humblot.

. 1990. An Antinomy in Kelsen's Legal Theory. Ratio Juris 3: 29-45.

. 1991. Algunas consideraciones sobre 10s sistemas juridicos. Doxa 9: 257-79. Caracciolo, Ricardo. 1988. El sistema juridico. Problemas actuales. Madrid: Centro de

Dworkin, Ronald. 1970. Is Law a System of Rules? In Essays in Legal Philosophy.

Ferrajoli, Luigi. 1989. Diritto e ragione. Teoria de1 garantismo penale. Bari: Laterza. Finnis, John. 1973. Revolutions and Continuity of Law. In Oxford Essays in juris-

prudence. Second Series. Ed. A. W. B. Simpson, 44-76. Oxford: Oxford University Press.

Estudios Constitucionales.

Ed. R. Summers, 24-60. Oxford: Basil Blackwell.



Hart, H. L. A. 1961. The Concept of Law. Oxford: Oxford University Press. Hernandez Marin, Rafael. 1984. El derecho como dogma. Madrid: Tecnos. Hoerster, Norbert. 1983. "Wirksamkeit," "Geltung," und "Gultigkeit" von

Normen. Ein empiristischer Definitionsvorschlag. In Das Naturrechtsdenken heute und morgen. Geduchtnisschriff f u r Renk Marcic. Ed. D. Mayer-Mally and P. M. Simons, 585-96. Berlin: Duncker & Humblot.

Kelsen, Hans. 1945. General Theory of Law and Stafe. Cambridge, Mass.: Harvard University Press. (Spanish Translation by E. Garcia Maynez, Teoria General d d Derecho y del Estado, Mexico: UNAM, 1949).

. 1973. Derogation. In Hans Kelsen, Essays in Legal and Moral Philosophy. Ed. Ota Weinberger, 261-75. Dordrecht: Reidel.

Kliemt, Harmut. 1986. Las instituciones morales. Trans. J. M. Sena. Barcelona: Alfa. MacCormick, Neil, and Ota Weinberger. 1986. A n Institutional Theory of Law.

Mazzarese, Tecla. 1991. "Norm Proposition": Epistemic and Semantic Queries.

Navarro, Pablo E. 1990. La eficacia del derecho. Madrid: Centro de Estudios

Nino, Carlos. 1985. La validez del derecho. Buenos Aires: Astrea. Raz, Joseph. 1970. The Concept ofa Legal System. Oxford: Oxford University Press.

Dordrecht: Reidel.

Rechtstheorie 22: 39-70.

Constitucionales.

. 1979. The Authority of Law. Oxford: Oxford University Press.

. 1980. Postscript. Sources, Normativity and Individuation. In J. Raz, The

. 1986. Prefacio a la edicion espafiola. In J. Raz, El concepto de sistema juri'dico.

Searle, John. 1969. Speech Acts. A n Essay in the Philosophy of Language. Cambridge:

von Wright, Georg Henrik. 1963. Norm and Action. A Logical Enquiry. London:

. 1980. Problems and Prospects of Deontic Logic. A Survey. In Modem Logic.

. 1983a. The Foundations of Norms and Normative Statements. In G. H. von

. 1983b. Norms, Truth and Logic. In G. H. von Wright, Practical Reason,

Concept of a Legal System. 2nd ed. 209-38. Oxford: Oxford University Press.

Trans. R. Tamayo y Salmoran. Mexico: UNAM.

Cambridge University Press.

Routledge & Kegan Paul.

A Survey. Ed. E. Agazzi, 399-423. Dordrecht: Reidel.

Wright, Practical Reason, 67-82. Oxford: Basil Blackwell.

130-209. Oxford: Basil Blackwell.


Some Remarks on the Notions of Legal Order and Legal System

Documents

Transcript of Some Remarks on the Notions of Legal Order and Legal System