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The Concept of Legal Systems

  • Dick W. P. Ruiter
Chapter
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Part of the Law and Philosophy Library book series (LAPS, volume 18)

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

Keywords

Legal System Basic Norm Legal Norm Tree Part Constitutive Rule 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

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References

  1. 1.
    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.Google Scholar
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    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.Google Scholar
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    Mathematicians prefer to call them ‘inductive definitions’. Since the term ‘induction’ may be misunderstood, we shall not use it.Google Scholar
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    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.Google Scholar
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    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).Google Scholar
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Copyright information

© Springer Science+Business Media Dordrecht 1993

Authors and Affiliations

  • Dick W. P. Ruiter
    • 1
  1. 1.Department of Public Administration and Public PolicyUniversity of TwenteEnschedeThe Netherlands

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