Dwojakie normy

Tadeusz Czeżowski

DOUBLE NORMS

Moral norms usually have the form of statements of obligation containing the words, ‚should’, ‚ought to’, ‚It is required … ‚, etc.; the form proper to a legal norm is the declarative sentence. In both these forms norms with good sense be preceded by the sing of assertion, ‚It is true that … ‚ and construed as a logically true statement affirming the existence of a duty or state of affairs ordained by a legislative institution. Hence, the contrary opinion denying norms to be statements in the logical sense and attributing to them the function of command or recommendation, is incorrect: for, for a norm to be realized an additional act of decision motivated by a norm of either kind, is required. That decision is expressed by an imperative sentence, addressed to the person due to realize the norm (it can also be the same person that issued the norm, commanding himself to execute it). Occasionally imperative sentences replace a norm – as, eg., in the Decalogue; in such cases, they should be regarded as elliptic expressions with an implicit motivating norm understood.

The declarative sentence, ‚One does so-and-co’ gains the character of norm as a: result of some extraneous decision whereby its validity is assumed. Such kind of norms are ,therefore called thetical or constituted norms. For legal norms the role of such decisions is played by the enactments of a legislative body, analogical here to the so-called axiomatic directives of deductive theories. The directives constitute meta-theoretical statements where axioms are accepted as statements true for the given theory, for the purpose that, having accepted them, a system of objects may be built up representing the universe, or realm, presented and described in that theory, – as, eg., the realm of Euclidean or non-Euclidean geometry. In a similar way, we could speak of the realm of chess combinations, composed of the rules of chess. The legislative bodies’ enactments constitute directives which introduce statements whereby, as by the axioms, a certain realm is constructed – namely, a legal system. Within that system, true sentences constitute legal norms, but they also are laws in the sense as that in which we speak of scientific laws, i. e., what they say does in fact tyke place, or, in other words, the norms are complied with. An empirical community where that is taking place is, to use a term borrowed from mathematics, a model of that system, just as the partners in a game of chess are a model of the chess system. It ceases to be the model as soon as the laws are no longer obeyed, i.e. when the norms therein contained lose their validity. When a system loses its model it does not thereby cease to exist as a system, but it becomes a dead legal system, just as a language whose norms have gone out of practice is a dead language. A system of norms for any positive law is not closed, meaning that its norms make it possible to decide for every situation what is not in agreement with them; in an empirical model there is always scope for social situations which refuse treatment according to the existing norms, and so the incessant legislative activity serves the increasing needs of the community subjected to a given system. Moreover, every system of positive law, like any other axiomatic system, expands by deduction of derivative norms from the primary norms of the system. That is so because every consequence of any true statement within a given system is also a true statement. And every such consequence is also a norm in force for the community subjected to a given legal system, since the community could not be the empirical model for that system. It is true that legal norms are not faithfully observed, the law is occasionally broken and the sanctions stipulated for such trespassing are not always enforced; in such cases thetical norms, while retaining their character of true statements within the system (‚formally’), cease to be true in the model (‚materially’), and the community is then only an approximate model of the given legal system. The same, however, applies, eg., to physics, where the empirical universe described is but an approximate model of the theory, or, to use a different expression, theory, as compared to the empirical, is idealized. Apart from the statements of the system itself, premises for legal decuction are also represented by empirically true statements which have for their object persons and events of the model society; premises of this kind occur in syllogisms· subordinating case to a universal norm, as, eg., in the case of a judge passing verdict in a penal case: he establishes a particular norm by seeking reasons for it amongst legal norms. But this norm has to be distinguished from the decision to put it into practice, which is done by the Jury by a separate act ordaining it to a special judiciary organ.

In logical analysis, a norm in the form of a statement of obligation is a modal statement, composed of a modal functor such as ‚It is allowed … ‚, or its denial, and- of argument designating the act thus ordained, permitted, or forbidden. By accepting some of these functors as primary, model logic is formed, according to which statements of duty are related by means of inferential relations. A norm of obligation obtains its power not from any decree ‚but by relation to some broadly conceived ‚good’. Elsewhere, the author as tried to substantiate the claim that elementary evaluations of the form, ‚This is good’, analogous as to structure and function to singular perceptive judgements, are generalized to give generic evaluations, „Such-and-such things are good (better, best)”. The relation between statements of obligation is one of equivalence: One ought always to do this or that then and then only when this or that is good (better, best). Thus interpreted, statements of obligation as distinct from constituted norms, are called axiological norms. The system of constituted norms has been described as an axiomatic deductive system, and correspondingly, the system of axiological norms, formed on primary empirical evaluations, may be described as empirical theory. Thetical norms may be compared to those which the ancient Greek sophists regarded as binding through man’s decree, whereas the axiological ones, to the ones the sophists deemed as binding by nature.

Still, the distinction between constituted and axiological norms may appear unfounded. After all, constituted norms can also be expressed in statements of obligation and substantiated empirically in a similar way as axiological norms by reference to what is good. Whilst basically agreeing with that, we can yet retain the former distinction between the two kinds of norms. That is so because empirical norms can be formed in two ways, namely, from the top to bottom, or from base to top, deductively, or inductively. The deductive method in modern theory of science is represented by Galileo with his theoretical mechanics, while the inductive was propounded by Bacon. The deductive method creates an axiomatic theory in order to describe a certain definite sphere of facts which is to serve as model for the theory, and this is achieved if the principles of the theory together with their consequences are verified in that sphere of facts. The inductive method goes the other way round: namely, by generalizing singular perceptive statements acting as its premises and points of issue, ultimately to reach inductive laws explaining the conditioning asserted in the original singular statements. Taking that opposition of the two methods into account, we are still able, despite the doubts mentioned, to retain the opposition between the system of constituted norms, construed as an axiomatic deductive system, and the system of axiological norms regarded as an empirical inductive theory.

Many critics express the view according to which juristic deductions from legal norms acting as premises, are supposed to be some specific form of reasoning which does not admit of being reduced to the reasoning of formal logic. In the arguments intended to substantiate those claims reference is made to the distinct character of normative statements; however, it is not made clear what that alleged specific quality of juristic deductions is supposed to consist in. In contrast to such views, the foregoing exposition is meant to demonstrate that there is nothing to distinguish constituted norms – and that is what legal norms are – from other logical statements, their normative character being derived from meta-theoretical foundations, and that there is no ground for claiming for them any specific kinds of reasoning.

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