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At the end of the preceding chapter we formulated the hypothesis that actual legal systems comprise acts-in-the-law of all seven classes into which our general classification of declarative speech acts divides. The plausibility of this hypothesis could be illustrated by giving particular examples from various legal systems. However, an ad hoc collection of examples would be of little help in supporting this study’s central thesis, namely, that it is more accurate to picture present-day legal systems as coherent systems of specializations of declarative speech acts and of valid presentations resulting from successful performances of them than as systems of norms of conduct supplemented by auxiliary constructions. This thesis is corroborated by showing how declarative speech acts of all seven classes are jointly put to use in building up a particular legal system.
KeywordsMember State Legal System Successful Performance Legal Norm European Economic Community
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- 1.Cf. Court of Justice of the EEC, Case 6/64 (Costa — ENEL), Jur. 1964, 1204.Google Scholar
- 2.It is well known that these goals, set out in 1957, were never achieved as originally envisaged. We are dealing with obsolete rules. This, however, makes them all the more useful as examples since we need not attend to their usually confusing practical implementation.Google Scholar
- 3.In article 33 of the 1983 Constitution, the King’s inauguration is mentioned only in passing. This is in accordance with the policy of de-constitutionalization followed in drafting the new text.Google Scholar
- 4.Ross (1968), 130–131: ‘Those enunciations in which competence is exercised are called actes juridiques, or acts-in-the-law, or, in private law, dispositive declarations. Examples are: a promise, a will, a judgment, an administrative licence, a statute. An act-in-the-law is, like a move in chess, a human act which nobody can perform as an exercise of his natural faculties. Norms of competence are, like rules of games, constitutive.’ See also Lindahl (1977), 196.Google Scholar
- 5.Ross (1968), p. 96: ‘A set of rules of competence constitutes a unity which may usually be divided into three parts: (1) those which determine personal competence, indicating what persons are qualified to participate in the procedure which creates new laws; (2) those which determine procedural competence, defining the procedure to be followed; and (3) those which determine substantial competence, indicating those matters with which the directive, issued by qualified persons in the manner prescribed, may concern itself.’ Also, D.N. MacCormick and Z. Bankowski, ‘La théorie des actes de langage et la théorie des actes juridiques’, in: P. Amselek (1986), 202–203.Google Scholar
- 6.D.N. MacCormick in: MacCormick and Weinberger (1986), 65, provides the following general formula of what he calls ‘institutive or power-conferring rules’ :’If a person having qualifications q performs act a by procedure p and if the circumstances are c, then a valid instance of institution I exists.’Google Scholar
- 7.Vanderveken I (1990), 168.Google Scholar
- 8.Kelsen (1991), 103–104.Google Scholar
- 9.Ibid., 104.Google Scholar
- 10.Cf. MacCormick and Weinberger (1986), 57.Google Scholar
- 11.For a different account of the relationship between legal rules as ‘institutional facts’ and antecedently valid law, see MacCormick and Weinberger (1986), 67–74.Google Scholar