The Philosophy of Legal Change

Theoretical Perspectives and Practical Processes

Maciej Chmieliński, Michał Rupniewski, Maciej Chmieliński, Michał Rupniewski

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429997693
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Democratic legal systems have recently been subject to rapid and multi-directional processes of change. There are numerous sociological, technological, ideological, or purely political processes which result in law's amendment and transformation. This book argues that this legal change is best understood from a political philosophy perspective. This can be used as an interpretative device to understand the ongoing processes of change as well as their outcomes such as new laws, judicial interpretations, or constitutional amendments.

The work has three main objectives: to provide deeper understanding of the problems of legal change within the diversity of Western political and legal thought; to examine the development of the processes of change in terms of their normative and prudential acceptability; to interpret actual processes of change with a view to the general theoretical and normative background. The book is divided into three parts: Part I sets the scene and is focused on the general issues important for understanding and evaluating legal change from the perspective of political philosophy; Part II focuses on the spectrum of politico-philosophical justifications present in the political culture of democratic states; Part III offers selected case studies to specify and apply the philosophical ideas in the previous parts.

The book will be a valuable resource for students and scholars of law and jurisprudence, including comparative legal studies and human rights law, political theory, and philosophy.

Part I

General theories

1 Standards of law-making as the parts of normative space in the post-modern democratic states

The question of justification and legitimacy of law¹

Tadeusz Biernat

Introduction

The questions of what is and what should be law have dominated the theory and philosophy of law for years. Over the last century, this debate has been extended to the specific issues concerning the creation, application, and interpretation of law. Law-making has become one of the important issues. The positions presented in this debate have been closely related to philosophical positions, trends in jurisprudence, and, to a large extent, separately shaped legal systems. There has been a mainly positivistic trend to the direction of legal considerations, such as the issues of the body authorized to make law, the coherence of the legal system (the relationship between the established normative acts and those that belong to the system), and also the role of the legal procedures in the process of law-making. My analysis of the basics of the law-making process refers to the last of the above-mentioned aspects, stressing the role of standards.

The legislative standards of the state under the rule of law are important elements of the normative space that influences law-making processes and creates new conditions of justification and legitimization of law. It is beyond dispute that the quality of the legislative process and its effects, in the form of the created laws, depends on the degree of the realization law-making standards. Rather, I would like to discuss the auxiliary thesis that it is the degree of realizing law-making standards that plays an important role in the justification of legal activity and legitimacy of law. The key concept of the study is how normative spaces describe phenomena characteristic to the post-modern democratic state.

1 This article was written as a part of the research project No. 2014/13/B/HS5/00565- financed by NCN (National Science Centre Poland). Analysis of the law-making standards as the parts of normative space in the post-modern democratic states, and their role in the processes of creation of law, is only one aspect of the planned research task, entitled “The normative sources of law in the post-modern society and law-making process”. The scientific aim of the project is to investigate the relationships existing between law-making process and the elements of normative space characteristic to the contemporary, post-modern society. The purpose of the study is not only an attempt to validate the hypothesis, but also the verification of the research method in the form of a referential model of law-making analysis – the study of law-making by references to the rules to the normative sources. The proposed model of the analysis is a promising method for examining legal and non-legal normative complexity by a deep, descriptive focus on lived normativity in all its forms.

1 The concept of normative space

A widely discussed attribute of post-modern democratic states is the problem of the dynamics and the complexity of social systems, a phenomenon that is described in the following way:

It is beyond any dispute that we witness a process of growing complexity in the social sphere. We may disagree on some details of the social processes taking place nowadays, but the broad outline is uncontroversial – in principle, all societies are becoming more and more complex with the passage of time. When viewed from a historical and empirical perspective, a transition from simple societies, institutions and interactions to complex, more sophisticated ones seems to be irreversible and inescapable.

(Gizbert-Studnicki & Klinowski 2009: 6)

The dynamics and complexity of the modern normative environment, both the form of the new normativities as well as the creation of the normative space itself, are consequences of these processes.

To clarify the relationship between standards of law-making and the normative space in post-democratic states, first I would like to explain in what sense I use the term “normative space”. This term is sometimes used to define the space between the existing legal orders (Zirk-Sadowski 2014). This concept or similar “space of normativity” is close to the notion of the “sphere of normativity”, but it differs considerably. The notion “sphere of normativity” is too general and all concepts of “ordered normativity” have their place in it. When one speaks of spaces of normativity, the discussion should aim not only at proving their existence, but also at uncovering their functions. “Thinking of spaces of normativity in contemporary law implies not only looking at the emergence of varying spaces of normativity in positive law but also considering them from non-legal perspectives” (Lixinski 2008: 2). An important feature of the normative space is that normativity can take on many forms and operate in multiple spheres creating new normative reality as examples of an emerging of normative space indicate.²

2 The second volume of the European Journal of Legal Studies (2008) was dedicated to emerging areas of law or new “spaces of normativity”.

I use the term “normative space” in a strictly defined meaning. The use of the concept of normative space results from the proposal of a new approach to the study of the functioning of law in the world of normativity. The proposed change in the research paradigm consists in abandoning the perception of law as an element of the broadly understood normative order. The proposed approach differs considerably and is more useful to describing and characterizing the normative changes of post-modern society. The point is that mainstream scientific discussion does not adequately address the emergence of new forms of normativity, nor the scope and mode of their aggregation.

The vast majority of analyses in the literature, perhaps even all of them, assume that the normative and axio-normative system, including the relationships of its parts, is expressed coherently with well-defined boundaries. This allows the system to serve as the basis of normative reality. The defining elements and relations of the system most often form hierarchical order that is culturally, temporally, and territorially designated. I propose an alternative perspective on the relationship between law and normative space (normative environment), one whose characteristic feature is its dynamics. These dynamics affect both the emergence of new normative elements, or normative sources, as well as continuously clarify their normative content. However, analyzing this phenomenon, one must remember another decisive aspect: the present day is characterized by the unlimited transfer of normative elements. Anything created in one social reality can be “transferred” to another one, quickly, effectively, and without any restrictions, as effectively demonstrated by the case of precedent.

Furthermore, the force and effects of normative elements, such as precedents, are derivative from their privileged position. We point out three aspects of precedents that yield possibilities of disseminating their content worldwide in a relatively easy and natural way.³ First, the special position of precedents is related to the narrative formula of precedents and their mediality; in the content of the ruling and the justification of precedents, there manifests itself a history, connected with a particular event, most interesting to the media. Second, the rule expressed in the precedent by its relationship to facts is more understandable and clear than the abstract general norm. Third, in the modern world the emergence of new forms of mass communication gives unlimited possibilities of disseminating the content of precedents. Generally, the content expressed in the normative sources of one reality is not only easily accessible, but also often indicates a potential pattern in the similar social situations.

Assigning to the normative space a strictly and permanently defined structure and boundaries is difficult. Key normative elements can periodically play the most important role, but their normative functions are not always decisive. In broader terms, the notion of normative space includes more or less formalized elements (first of all, systems of legal principles and norms – law itself) that influence law and the creation of law. In other words, normative space is part of environment, in which the law is only a point on a normative continuum. The following well expresses and justifies my approach:

3 In some cases, the need to disseminate court judgments is emphasized officially. “It highlights the need for the dissemination of relevant decisions of the Court of Justice of the European Union (CJEU) and for an exchange of national court decisions in line with CJEU and European Court of Human Rights case-law pertaining to the provisions of the Employment Equality Directive” (European Parliament 2016, point 92).

We are normative animals, expressing evaluative judgments of appropriate claims and conduct. Normativity is thus universal. Legality isn’t. Laws, as defined by centuries of Western convention, are points on a normative continuum and always rest within the wider matrix of less-institutionalized normativity. Legal norms are a subset of social norms. But if laws and norms may be distinguished in this way, they cannot be divorced. For this reason, jurists must take general normativity seriously and social scientists must respect legality’s unique normative position . . . There has been no – and is now no – unified and pure legal or normative space, controlled respectively by either an all-embracing state or society. Instead, laws and norms always rest within the wider web of strong or deep legal pluralism, the totality of normative orders and more diffuse normative influences.

(Donlan 2015: 8)

Given that normative statements rest within a wider web of strong and deep normative pluralism, it is justified to use various sources. Thus, in scientific studies, the selection mechanism used is of particular importance.

The increasing complexity of society and the ever more accentuated differentiation and enhancement of merely normative perspectives require the preparation of more suitable and efficient selective mechanisms, subtracted from the momentary distribution of power, in order to maintain the level of achieved development. In ways that can be totally different in particular, systems of specific interaction are produced, the so-called procedures, with the particular task to provide binding functions.

(Di Viggiano 2011: 108)

In this context, it is clear that normative statements, procedural solutions, and standards are not only an important component of the normative space, but also help shape it.

Such an approach to the normative space requires a closer characterization of the way in which I use the term “normative elements”. It is not possible in this chapter to fully address the concept of “normativity”, but at the least it must be stressed that normativity has different levels and forms of expression, or “the content of ought”. “The use of ‘should’ and its normative cognates in such contexts is specified in a certain way, usually made plain by the nature of the context” (Black 1964: 176). Specific normative contents, expressed in different forms, are normative elements: they are statements that make claims about how someone should or ought to act, to behave in a social relationship. In this approach, the systematization of normative elements does not play a pivotal role, but rather it is a matter of their free aggregation carried out within the framework of doctrinal legal narrative or in the context of the practice of law. In general, the normative space consists of, most importantly: norms implicit in values; human rights; legal principles and norms; precedents; soft law norms; standards; normative statements included in the justification of judicial decisions; and normative statements included in the legal doctrine.

2 Legal provisions and standards of legislation

As society develops there are significant changes in normative space, including law. Laws, or more precisely the formal sources of law, are first of all procedural provisions that belong to a particular legal system and are dependent on the normative space. The same is true for all forms of legal activity, such as law-making, legal application, and the interpretation of legal acts. However, it is also true that such activity is likewise related to other normative elements. This is clearly demonstrated in the context of the law-making process, which on the one hand is governed by the legal provisions and on the other by different normative statements and standards, characteristic to the democratic state under the rule of law. Standards, being an element of normative space, determine the creation of law, and are (sometimes) more influential than legal provisions directly related to the creation of legal acts and have decisive meaning in the justification of legal activity and legitimacy of law.

The concept of “standard” has manifold meaning. Standards set the manner of conduct, the course of action. They are similar to rules as a type of directive and share all problems of normativity characteristic to that phenomenon, but they are clearly different in their broader dimension. The rules vs standards comparison is an interesting starting point for discussion:

Thus far I have been pretending that the meanings of “rules” and “standards” are self-evident. Before defining these terms, a little background is necessary. It is possible to look at positive law (constitutions, statutes, judicial opinions, and administrative orders) as a series of directives. The formula for a legal directive is “if this, then that.” A directive thus has two parts: a “trigger” that identifies some phenomenon and a “response” that requires or authorizes a legal consequence when that phenomenon is present . . . Corresponding to the two parts of a directive, there are two sets of oppositions that constitute the rules v. standards dichotomy: The trigger can be either empirical or evaluative, and the response can be either determined or guided. The paradigm example of a rule has a hard empirical trigger and a hard determinate response. For instance, the directive that “sounds above 70 decibels shall be punished by a ten dollar fine,” is an example of a rule. A standard, by contrast, has a soft evaluative trigger and a soft modulated response. The directive that “excessive loudness shall be enjoinable upon a showing of irreparable harm,” is an example of a standard.

(Schlag 1985: 2)

The comparison of rules and standards indicates the dual nature of a standard: standards can be changed to norms by incorporating independent legal provisions or acts, while retaining directive elements that allow for its gradual evaluation:

Indeed, our dissatisfaction with both rule-oriented and standard-oriented approaches is reflected in the tendency of rules to evolve or degenerate, depending upon our perspective, into standards, and standards to evolve or degenerate into rules. This tendency towards refinement or entropy occurs via some routine patterns:

1 Standards tend to become concretized by means of specific rules. (The meaning of a general standard is found in its specific applications.)

2 Rules tend to yield specific exceptions that are generated by appeal to other standards. (The meaning of a general rule is found in the standards limiting its application.)

(Schlag 1985: 20)

The dual nature of standards is clearly presented in the law-making. Fundamentally, law-making standards are expressed by provisions in legally binding acts. In the broad context, law-making standards are the normative statements that obligate actors to fulfil their actions in the most proper way at the highest level. The law-making process is affected by standards in two aspects. In the first dimension, standards of law-making are the parts of legal acts related to the organization of the law-making process. Specifically and importantly, this dimension is strongly connect...