Describing and Prescribing
Language does more than report. "The window is shut" describes. "Shut the window" prescribes.
The first can be true or false. The second cannot. The key consequence is clear: a norm is not true or false, it is valid or invalid.
This forces a crucial distinction:
- A norm prescribes conduct: "drivers must stop at a red light".
- A normative proposition describes a norm's existence: "in Spain, drivers must stop at a red light". It can be true or false.
The elements of a norm
Georg Henrik von Wright gives the standard analysis. Three elements form the normative nucleus:
| Element | What it fixes | Example |
|---|---|---|
| Character | Obligatory, prohibited, or permitted | Must |
| Content | The action or omission itself | Stop |
| Condition of application | The circumstances where it operates | At a red light |
Around the nucleus sit other elements:
- The authority who issues the norm.
- The subject addressed by the norm.
- The occasion in space and time.
- The promulgation of the text.
- The sanction for non-compliance.
Primary and secondary norms
Hart sets out his theory in The Concept of Law. For him, primary rules impose duties on citizens. Meanwhile, secondary rules govern the primary rules.
Secondary rules include:
- The rule of recognition, which identifies what counts as law.
- The rules of change, which govern how norms are made and repealed.
- The rules of adjudication, which empower judges to decide disputes.
A legal system is the union of primary and secondary rules.
Kelsen uses the terms differently. For him, the norm directed to officials is primary. The rule for citizens is secondary.
Validity, efficacy, applicability
Four properties must be kept distinct:
- Validity: membership in the legal system.
- Vigencia: being formally in force after publication.
- Efficacy: being obeyed and applied in practice.
- Applicability: governing a particular case.
For Kelsen, legal validity ends in a presupposed basic norm.
For Hart, validity rests on the rule of recognition as an observable social practice.
Common pitfall: inferring that a norm is invalid because nobody obeys it. Disobedience makes a norm inefficacious. It remains valid until repealed.