Abstract
Among the first legal scientists to notice the similarity between legal provisions and performative utterances was the Scandinavian legal realist, Karl Olivecrona in the second, completely rewritten version of his book Law as a Fact.1 The notion of ‘performative utterances’ or ‘performatives’ stems from J.L. Austin, the founding father of the theory of speech acts.2 Austin pointed out that many human utterances seem, on first glance, to describe reality, while on closer inspection this simply cannot be the case. Turning to the classic example frequently used by Austin himself:
“‘I name this ship the Queen Elizabeth” — as uttered when smashing the bottle against the stem.’3
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References
K. Olivecrona, Law as a Fact, second edition, London, 1971, 217 ff. This second edition is a completely rewritten version of the first edition, published in 1939.
Austin first invited attention to the notion in an article appearing in 1946 under the title ‘Other Minds’. Cf. J.L. Austin, Philosophical Papers, Oxford, 1961, 71. More elaborate accounts are to be found in Austin’s BBC-lecture ‘Performative Utterances’, also published in Philosophical Papers, 220 ff. and in his lecture notes posthumously edited by J.O. Urmson under the title, How to Do Things with Words, Cambridge (Mass.), 1962.
Austin (1961), 222; Austin (1962), 5.
Olivecrona (1971), 218.
Ibid., 221.
Ibid., 219.
Ibid., 221.
Ibid., 223.
Ibid., 223.
Ibid., 230.
Hart (1961), 80.
Ibid., 85.
Ibid., 87.
See on this topic also Aleksander Peczenik, On Law and Reason, Dordrecht, 1989, 259–261.
Art. 2, sec. 1, Wet administratieve rechtspraak overheidsbeschikkingen. (Act of judicial review of administrative determinations.) The Dutch term ‘overheidsbeschikking’ is comparable to the German ‘Verwaltungsakt’.
Searle (1969), 73–76; B. Mates, Elementary Logic, second edition, Oxford, 1971, chap. 2.; A. Ross (1968), 11.
Our respective pictures of Kelsen’s basic norm and Hart’s rule of recognition are reduced to bare essentials. Honesty obliges us to admit beforehand that our presentation of the two concepts is adjusted to our own purposes. Both authors are taken as the protagonists of two fundamental positions bearing on the problems we want to solve. In order to present these positions in as clear-cut a way as possible, the many ambiguities with which both authors are reproached in an extensive secondary literature are left unconsidered here. See a.o. Aulis Aarnio, The Rational as Reasonable, Dordrecht, 1987, 33–38; N. MacCormick, Legal Reasoning and Legal Theory, Oxford, 1978, passim;
N. MacCormick, H.L.A. Hart, London, 1981, passim.; A. Peczenik (1989), 226–233.
H. Kelsen, Pure Theory of Law, Berkeley, 1967, (repr. 1978), 193.
Ibid., 194.
Ibid., 194–195.
H. Kelsen, Allgemeine Theorie der Normen, Vienna, 1979, 206–207;
see also the translation by M. Hartney: H. Kelsen, General Theory of Norms, Oxford, 1991, 256.
See on Kelsen’s shift: Stanley L. Paulson, ‘Kelsen’s Legal Theory: the Final Round.’ Oxford Journal of Legal Studies, 1992, vol. 12, no. 2, 265–274.
Hart (1961), 86.
Ibid., 99.
Ibid., 100.
Ibid., 92.
Ibid., 104.
Ibid., 107.
Ibid., 108.
J. Raz, The Concept of a Legal System, Oxford, 1970, 1 ff, distinguishes four problems regarding legal systems: the problem of existence of a legal system, the problem of identity, the problem of structure and the problem of content. Here we attempt to disentangle the problems of existence and structure.
Kelsen (1967), 210.
Ibid., 106.
The similarity between these positions is also recognized in Peczenik (1989), 229. See further on the positions of Kelsen and Hart: Z. Bankowsky, ‘Institutional Legal Positivism’, Rechtstheorie 20 (1989), 289–302.
See Appendix A.
Explanatory Memorandum, Second Chamber 1975–1976, 13872, nr. 3, 22. See on divergences between the classical constitutional nondelegation doctrine and modern constitutional jurisprudence in the U.S.: Michael D. Bayles, Procedural Justice, Dordrecht. 1990. 66–67.
See Appendix A.
Kelsen (1967), 221.
Hart (1961), 77–96.
Douglas R. Hofstadter, Gödel, Escher, Bach: an Eternal Golden Braid, 1979, 127.
Ibid.
Douglas R. Hofstadter, Metamagical Themas: Questing for the Essence of Mind and Pattern, 1985, 420.
Here we do not consider the not unimportant detail that leaves, too, are tree parts growing out from branches. For simplicity’s sake, let us concentrate on barren trees in winter.
Mathematicians prefer to call them ‘inductive definitions’. Since the term ‘induction’ may be misunderstood, we shall not use it.
Ota Weinberger, Rechtslogik, Vienna, 1970, 265;
Christiane and Ota Weinberger, Logik, Semantik, Hermeneutik, Munich, 1979, 183;
James D. McCawley, Everything that Linguists have Always Wanted to Know about Logic, Oxford, 1981, 151–155;
E. Roberts, Thinking Recursively, New York, 1986, 14 ff.
Hofstadter (1985), 416.
Kelsen (1967), 212 (translation slightly altered).
Once a concept is available as an instrument for understanding how products of human activity of a certain kind are structured, the same concept can also be used as an instrument for purposefully creating new products of the same kind. Regarding the concept of legal system, its use as a designing instrument can be found in all modern written constitutions. They generally contain provisions prescribing a division of regulative powers between higher and lower authorities in terms suggesting that the designers consciously aimed at constituting a legal system. Plainly, the analytic and constructive functions of the concept of legal system have thus become nearly inextricable. It is not then surprising that the analytical use of the concept yields structures that are in keeping with it, for the same concept was previously used in creating the object of analysis. A modern legal system is not merely an ex post systematization of valid law. Conversely, modern law is constructed in the form of a legal system.
Raz (1970), 156. The theories of Bentham and Austin are expounded in Lars Lindahl, Position and Change. A Study in Law and Logic, Dordrecht, 1977, 4–25, 198–203.
Raz (1970), 169.
Ibid., 27.
Ibid., 199. A fierce proponent of this vision is Ross(1968), 118: ‘Norms of competence are logically reducible to norms of conduct in this way: norms of competence make it obligatory to act according to the norms of conduct which have been created according to the procedure laid down in them.’
Ibid., 228.
Ibid., 170–183.
Ibid., 169.
Authors who interpret legal rules primarily as obligatory norms are Hans Kelsen (Austria), Alf Ross (Denmark) and Karl Engisch (Germany). Modifications of this approach can already be found in the works of Wesley Newcomb Hohfeld (USA). Intriguing are studies by F. Weyr and K. Englis in the Czech language, belonging to the so-called Brünner branch of the Pure Theory of Law, of which small parts have been translated into German. See: V. Kubes and O. Weinberger (ed.), Die Brünner rechtstheoretische Schule, Vienna, 1980. Other names are C.E. Alchourrón and E. Bulygin (Argentina), K. Larenz and J. Rödig (Germany). Recent literature by A. Aarnio (Finland), R. Dworkin (USA), W. Krawietz (Germany), L. Lindahl (Sweden), A. Peczenik (Sweden), O. Weinberger (Austria) and N. MacCormick (UK).
Ross (1968), 120: ‘Norms of permission have the normative function only of indicating, within some system, what are the exceptions from the norms of obligation of the system.’
See MacCormick and Weinberger (1986), 18, on present-day differentiations of types of norms.
Cf. Olivecrona’s marvellous exposition on the meaning of the ‘monetary unit’. Olivecrona (1971), appendix 2, 297 ff.
See, however, for similar observations Peczenik (1989), 225.
Cf. Dick W.P. Ruiter and Frans A. van Vught, ‘Neo-functionalism in Recent Dutch Higher Education Legislation’, European Journal of Education, vol 25, no. 2, 1990, 219–230.
Ross (1968), 53 ff.; R. Alexy, A Theory of Legal Argumentation, Oxford, 1989, 257; MacCormick and Weinberger (1986), 78, 97, 101; Aarnio (1987), 65; Peczenik (1989), 276 ff.
Authors referred to are John Rawls, ‘Two Concepts of Rules’, in: P. Foot (ed.), Theories of Ethics, Oxford, 1967, and R.M. Hare, ‘The Promising Game’, Revue internationale de Philosophie, 1964. Alf Ross (1968), 53, remarks in a footnote to the main text, in which he gives an account of the distinction as his own, that he was confronted with the same distinction in a 1964 article by John Searle ‘after this was written’. For the sake of completeness, it must be noted that the related distinction between ‘brute’ and ‘institutional’ facts was first made by G.E.M. Anscombe, ‘On Brute Facts’, Analysis 18 (1958), 69–72.
Searle (1969), 33–42.
Ibid., 34.
Ross (1968), 53.
Searle (1969), 178.
MacCormick and Weinberger (1986), 23–24, criticize Searle’s emphasis on the definitional character of constitutive rules to the neglect of their normative function.
Dick W.P. Ruiter, ‘Deontic-logical Relations and Speech Act Theory’, in The Netherlands Journal for Legal Philosophy and Jurisprudence, 1989, 2, 86.
Searle (1969), 36.
John R. Searle, Expression and Meaning. Studies in the Theory of Speech Acts, Cambridge, 1979, 7. The chapter in which this distinction is made was first presented as a lecture in 1971, and subsequently appeared as an article in 1975.
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Ruiter, D.W.P. (1993). The Concept of Legal Systems. In: Institutional Legal Facts. Law and Philosophy Library, vol 18. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-8198-1_1
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