Understanding Various Norms

From University of Tokyo 1S Law and Society

Understanding various “norms”

• “Normative rule understanding” by Kelsen (“methodological dualism”) Rn 38-
  • Thoroughly separate ought and is
  • Ought
    • The specific meaning of each law
  • Is
    • The process of practicing the law
    • For example, the ritual of voting in parliament becomes meaningful only when applying the Parliamentary Law
      • At this time, the act (practice) of applying norms and observing real phenomena is performed by the will of individuals, so that is also a discussion of the world of is
  • However, Vesting criticizes this
    • Refer to the diagram of the 626023dd79e1130000da36e8
      • The actual world looks like this
    • The Legal Proposition (world of ought) interacts with the changing real world’s Convention
      • It cannot be captured by isolating ought and is
• Luhmann has a different approach (Systems Theory)
  • First, as a premise, systems other than the legal system operate based on conventions (different from legal propositions)
    • Cognitive expectations (predicting based on experience and failures)
      • For example, if a transaction in the economic system turns out to be disappointing, one will not have the same expectations for similar transactions in the future and will avoid them, something like that? (blu3mo)
      • In this way, Convention is created
      • Well, this is a common human behavior
  • However, the legal system is unique

    • An attempt to stubbornly hold on to expectations against facts

    • Normative expectations
      • For example, even if one is assaulted by a dangerous waiter in a cafeteria one day, one does not learn to “not expect to be assaulted in the cafeteria in the future”
        • Ah, that’s right. I think this is because I believe that stable laws are guaranteed, so even if I am assaulted once in the cafeteria, I think it is an exception (blu3mo)
          • There is a belief that rules of the world of ought hold true regardless of the actual state
          • Such things are defined as ”rules” it seems
    • Example: Rn 42-43
    • And when doing this, the form of the law must be a Conditional Program, not a goal program
      • If it is a goal program, it incorporates temporal openness

        • A goal program takes into account facts that are not yet determined at the time of legal decision in the future

          • Yes, the idea of a goal program is that the means (conditions) to achieve the goal should strive to reflect the thinking at the time of practice
        • It involves uncertain elements from outside the system, such as “future state” (becomes open)
          • So, what specific problems does this cause? (blu3mo)
            • For example, suppose there is a goal program that says “make safe products”
            • If a product that was legal (safe) according to the technology level in 1970 is later deemed illegal (unsafe) according to the technology level in 2020 by a court, that would be a problem, right? (blu3mo)
              • This is a clear example of the uncertainty generated by “temporal openness” (blu3mo)
      • Since conditional programs do not have this kind of openness, there is no normative openness, according to Luhmann
    • Therefore, according to Luhmann, norms have cognitive openness but not normative openness
      • As indicated by the diagram of the 626023dd79e1130000da36e8, the propositions of law and their interpretations change due to the influence of Convention and practice space, so there is cognitive openness, I guess (blu3mo)
      • However, since temporal openness is excluded by conditional programs, there is no normative openness
        • Or rather, it argues that normative openness should not exist
  • Vesting further develops Luhmann’s systems theory
    • The difference from Luhmann lies in the scope of the word “norm”- Luhmann positions the center of norms on the law that the courts use as a criterion (Hard Law).
• However, norms are not limited to that.
• According to Vesting, even guidelines issued by the administration without legal binding force (Soft Law) can be considered norms since people feel obligated to follow them.
• And Vesting suggests that the purpose of a program in the context of the University of Tokyo’s 1S Law and Society course doesn’t have to be exclusive.
• While it is true that the law in the courts must be a conditional program, Soft Law is not subject to judicial review, so Vesting argues that a purpose program would be sufficient.
• In this regard, Vesting also suggests that there is normative openness in the legal system.
• In summary,

	Cognitive Openness	Normative Openness
Luhmann	Yes	No
Vesting	Yes	Yes

• The difference in interpretation arises from whether or not to include Soft Law as a norm.