Legal Language Lecture 2: THE LEGAL CONCEPT OF LAW Maciej Pichlak University of Wrocław Faculty of Law, Administration and Economics Department of Legal Theory and Philosophy of Law

Conflict of hermeneutics Law as Dulcinea del Tobosco Hermeneutics of suspicion Hermenutics of reconstruction

Introduction to... what? LAW legal science (jurisprudence)‏ normative system legal practices

„Sources” of legal order LAW Legislation Legal doctrine Legal practice

Methodological perspectives 1. Linguistic 2. Sociological 3. Psychological 4. Axiological

Normative system A set (system) of norms, which are (legally) valid Terms to be explained: * system * validity * norm

Normative system Shrek Principle Law as a multi-layered system 'Typical' rules, that is legal provisions which are formulated in legal texts (or other traditional sources of law), creates only a 'surface- level' of law. Except this level, law includes also other components.

Law as a multi-layered system Some ways of (theoretical) describing the multi- layered nature of modern law: rules and principles (R. Dworkin)‏ primary and secondary rules (H.L.A. Hart)‏ normative conception of sources of law (Z. Ziembiński)‏

Three levels of the law Theory of 'mature' modern law system Surface level Legal culture Deep structure

Three levels of the law Surface level Legal provisions formulated in the texts of law- making instrument or other typical sources of law (e.g. judicial decisions). The role of the doctrine of sources of law Visible and turbulent part of law.

Three levels of the law Legal culture Culture of legal professionals. Legal culture sensu stricto and sensu largo. Created by legal practices, legal science, legislator

Three levels of the law methodical element (paths of legal reasoning)‏ conceptual element (basic concepts of law)‏ normative element (general legal principles)‏ general doctrines‏ Components of legal culture

Methodical component Normative conception of sources of law Answers to the question: 'What counts as a law?' or 'What specific legal rules are valid?' validity rules exegesis rules

Rules and principles ‘Typical' rules validity: formal criteria ('test of pedigree')‏ application: 'all or nothing' fashion Principles are a part of 'institutional morality' validity: 'institutional acceptance' application: 'more or less' fashion (dimension of weight)‏

Three levels of the law General features of (thinking about) law, common for all societies within cultural circle. Despite of the need of holistic perspective, we can distinguish conceptual, normative and methodical elements. Deep structure of law

Deep structure Alternative interpretations of deep structure: - Deontological (basic principles) - Teleological (telos - moral ideal of law) - Formal (basic formal qualities of law)

Three levels of the law Discursive and practical knowledge Components of legal culture and their discursive expressions. The role of deeper layers: they are preconditions of legal practice they define the limits of law they are a yardstick for criticism of law