Abstract
In this chapter the investigation of the nature of legal rules is pursued a bit further. It deals with the function of legal rules in juridical thinking, their ontology, and their different degrees of generality and strength.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
- 2.
Gray (1921), p. 125.
- 3.
Ross (1959), p. 151 ff.
- 4.
See Frank (1949b), Law and the Modern Mind, where we find a psychoanalytic variant of American realism.
- 5.
Raz (1980), pp. 140–147.
- 6.
- 7.
Popper (1980), p. 143 f.
- 8.
This argument is logically implied in Popper’s reasoning.
- 9.
Popper (1980), p. 158.
- 10.
Popper (1980), p. 149 ff.
- 11.
Ideas somewhat similar to mine are found in Hage (2015), pp. 3–48. Hage says: “Logic may well be interpreted as a theory of the (logically) necessary relations between facts in the world” (p. 3). He talks about “the interpretation of logic as specification of the structure of the world” (p. 4) and argues: “Moreover, since the truth of sentences depends on the facts described by the sentences, logic is also a study of the necessary relations between facts. – Deductive logic is as much the study of such necessary relations between facts as a study of the validity of arguments” (p. 5).
- 12.
Thomas Aquinas, Summa Theologica. Treatise on Law, Question 96, First Article.
- 13.
Bentham (1970), chapter IX.
- 14.
As observed already by Bentham (1970), p. 76.
- 15.
I owe the distinction between strong and weak rules to Malt (1986), pp. 167–191 (this illuminating article is unfortunately only available in Norwegian). However, Malt applies his distinction to a much wider scope of legal phenomena than I do. My concern is weakness with respect to the formulation of legal rules only. In Malt (1985), he investigates one type of weak norms, viz., what he calls “probabilistic norms”.
References
Bentham J (1970) Of laws in general (The collected works of Jeremy Bentham: principles of legislation). Athlone Press, London
Frank J (1949a) Courts on trial. Princeton University Press, Princeton
Frank J (1949b) Law and the modern mind. Coward-McCann, New York
Gray JC (1921) The nature and sources of the law, 2nd edn. Columbia University Press, New York
Hage J (2015) The (onto)logical structure of law: a conceptual toolkit for legislators. In: Araszkiewicz M, Pleszka K (eds) Logic in the theory and practice of lawmaking. Springer, Berlin, pp 3–48
Hart HLA (1961) The concept of law. Oxford University Press, Oxford
Malt GF (1985) Deontic probability. In: Bulygin E et al (eds) Man, law and modern forms of life. Springer, Berlin, pp 233–240
Malt GF (1986) Svake normer (Weak norms). Tidsskrift for Rettsvitenskap:167–191
Popper K (1972) Objective knowledge: an evolutionary approach. Oxford University Press, Oxford
Popper K (1980) Three worlds. In: Sterling MM (ed) The Tanner lectures on human values. University of Utah Press, Salt Lake City
Raz J (1980) The concept of a legal system, 2nd edn. Oxford University Press, Oxford
Ross A (1959) On law and justice. University of California Press, Berkeley
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 2018 Springer International Publishing AG, part of Springer Nature
About this chapter
Cite this chapter
Frändberg, Å. (2018). The Juridical Rule Thinking. In: The Legal Order. Law and Philosophy Library, vol 123. Springer, Cham. https://doi.org/10.1007/978-3-319-78858-6_3
Download citation
DOI: https://doi.org/10.1007/978-3-319-78858-6_3
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-78857-9
Online ISBN: 978-3-319-78858-6
eBook Packages: Law and CriminologyLaw and Criminology (R0)