On the Concept of Legal Order

Abstract

An idea widely recognized and accepted by jurists is that legal norms form an order, The concept of legal order requires, consequently, an analysis based on the notion used by jurists. In this paper, legislative and not customary norms are taken into account. Two terminological explanations should be made at this point: (1) norms rather than propositions about norms are discussed, and (2) “legal norm” should be interpreted in its broadest sense, that is, statements that form part of legal texts, whether they be normative or not.

The intuitive notion of legal order can be said to consist of eight theses:

I. It is the totality of valid norms according to a criterion of validity.

II. It is a set of norms.

III. It is a system of norms.

IV. Its norms are created and derogated by acts of will.

V. It is subject to changes in time.

VI. The changes affect its content but not its identity.

VII. Its content is, in principle, determinable at all times.

VIII. In each State there is one and only one legal order.

Although these theses are intuitively acceptable, it is not easy to mold them into one coherent theory, since several of them are contradictory (III and IV with VII and VIII) .

Theses I and II are acceptable, although incomplete, definitions of “legal order” which could be made more precise.

With regard to III, “system” is understood to be a deductive system —a set of sentences which contains all its logical consequences— and a distinction is made, therefore, between norms that are expressly formulated and those that are derived. Theses IV and V are acceptable almost without doubt, especially as they refer to positive law. Thesis VI, accepted by almost all jurists, is, nevertheless, incompatible with II. If a legal order is a set, it cannot change without losing its identity since the identity of a set depends on that of its elements. The solution would be to recognize two concepts of legal order covered by the same expression, or to submit that “legal order” designates a sequence of sets, and that only a modification of the identification criteria would make it lose its identity.

The article deals with the alleged contradictions of III and IV with VII and VIII, presenting first the problem that if VII is false, then VIII is also false because the latter is a consequence of the former. For this reason, the notion of “promulgation of norms” is explained. It is shown, by means of an example, that the promulgation adds not only a promulgated norm, but also its logical consequences as well as the derivable of the union of such norms with the system. This promulgation is always univocal because it produces a definite normative system.

In the explanation of the notion of “derogation of norms”, mention is made of the derogation of the formulation of a norm, which eliminates not a norm but a redundant formula. Exemplification is also given of the derogation of a formulated norm. Here also not only the norm but also all its consequences are derogated, and it is univocal: it leads to another definite system. Finally, the derogation of a derived norm is discussed, and it is shown, with examples, that it is possible that this derogation may lead to a plurality of alternative systems. This shows that creation and derogation are not symmetrical since the latter can produce a logical indetermination of the system, that is, the situation in which various alternative systems appear. With this, the falseness of VII is proved, and therefore VI and VIII become problematic. If III and IV are accepted, thesis VII must be rejected.

In Section 4, the logical defects of legal systems are dealt with, as are logical indetermination, gaps, and contradictions, with mention made to some aspects of these problems.

Regarding the gaps, some of the ideas contained in the authors’ book, Normative Systems, are put forth. Later, a definition of “normative contradiction” is offered, with recognition of the fact that it is difficult to satisfy the formal point of view and intuitions at the same time. It is contended that two norms are contradictory when the fulfilment of one of them excludes, for logical reasons, the fulfilment of the other. Logical indetermination has, at the same time, the same practical consequences, although its origin is different. Logic alone cannot solve any of these problems, but it allows that they be made known and permits the examination of certain legal concepts whose analysis has practical application.

[Summary by Javier Esquivel]