Sources of Law Are not Legal Norms

Abstract

Anglo‐American authors have paid little attention to a subtle distinction that has important jurisprudential implications. It is the distinction between sources of law (e.g., statutes, precedents, customs) and the legal norms which can be derived from sources by means of interpretation. The distinction might also be rendered as a threefold one, separating sources of law from legal norms and both of these from that which mediates their relation, namely, methods of legal interpretation. This paper intends to state the “source‐norm” distinction clearly and to give examples of jurisprudential insights that are missed, and mistakes that may be made if the distinction is not given its due.

Janus‐Faced Coherentism and the Forgotten Role of Formal Principles

“…This neglect is perhaps due to the official discourse of the civil law tradition, which portrays precedents in the civil law as secondary reasons from authority, always eclipsed by constitutional or statutory provisions (Lasser 2009, 35–7). Conversely, while common law skeptics are experts on precedent, they rarely take into account the provision‐norm distinction to assess how judges change the meaning of provisions (Shecaira 2015).…”

The Legal Basis of CSR

“…On this basis, a judge of the English court has permission to refuse to apply any statute abrogating precedents or societal customs (Milde 2011). Additionally, legal norms which are not mandatory, like a source of law, also help judges to make a decision and permit their use, thus impacting judges and affecting interpretation of the law (Shecaira 2015). Hence, the normative opinion of a judgment consisting of human value is seen as crucial for legitimate decisions and the rule of law.…”

Computer-Assisted Legal Linguistics: Corpus Analysis as a New Tool for Legal Studies

“…This model emphasizes that legal cases cannot be (and are not) decided on the grounds of preexisting normative notions. Instead, normative guidance derives from a multistep procedure oscillating between two types of text, one describing the real events, and the other prescribing rules, until it settles on a norm stated specifically enough to apply to the case (for a similar analytical distinction between texts and norms, see Shecaira 2015). The model thus attributes paramount importance to the language involved and to the role of argumentation in each of these steps, thereby letting judgment depend on linguistic usage patterns.…”