As a conceptual rival to utilitarianism, deontological moral theories explore the concept of duty with its correlative notions of rights and permission. An individual can determine the “rightness” of his action by considering whether it is prescribed, forbidden or permitted by a moral rule. If this concept is applied to criminal law within the framework of normative legal theory, it is reflected if an act cannot be a crime unless it violates a moral duty and theories of retaliation of punishment. [7] 105. An example of a provision in which this distinction is clearly made is Article 67, paragraph 1, of Additional Protocol I to the Geneva Conventions (text in 38 ZaöRV (1978) pp. 86 et seq.), which defines the protection of military elements of civil defence. While non-compliance with the conditions of protection usually only results in the loss of protection without being unlawful, a particular case of non-compliance is explicitly called an illegal act. Utilitarianism is a form of consequentialism in which decisions are made by predicting the outcome that determines the moral value of an action. It assumes that the legislative system, unlike individual moral rules, offers the relevant margin of decision. [8] When this theory is placed in a legal context, an action is considered correct when an individual, as a virtuous moral actor, performs an act that demonstrates the essence of human excellence.
In the application of virtuous legal norms, a theory of judgment centered on virtue shows the characteristics of judicial moderation, courage, temperament, intelligence, wisdom, and justice. These Excellencies can be reflected in a concern for justice in virtuous jurisprudence. [9] While positive evidence-based legal theory explains the causes and effects of law enforcement, normative legal theory informs what the law should be by navigating the values and reasons behind legal action, law-making and judicial law. Legal theorists use the word “normative” in its general sense, which includes legal, social, and moral norms. Normative legal theories are highly evaluative and intertwined with moral and political theories. An example that shows the differences between positive legal theory and normative legal theory is presented by comparing their approaches to tort law. While positive theory attempts to explain what causal forces the existing principles of tort have produced, normative theory determines which rules of tort would be most justified. [6] Hart rejects the idea that legal norms are formed by the classical “natural law model” and emphasizes contexts in which legal norms can make sense. Hart`s view shows how contemporary societies could function better if a more deflationary understanding of law were implemented instead of restrictive moral norms. [11] 42.
See Management of International Water Resources: Institutional and Legal Aspects, UN Doc. ST/ESA/5, pp. 30 et seq. Legal norms form the basis of legal systems. Its structure can be represented by means of an ontological model that shows how the rules of conduct established by legal norms influence the creation and application of laws. [12] Normative legal theory uses judgments to infer the most appropriate rule to apply in legal reasoning and is influenced by moral or political theories. The general normative theories of deontology, utilitarianism, and virtue ethics are three general normative theories that significantly influence normative legal theory:[6] 4. McDougal, for example, criticizes the distinction between law and politics as “unreal” (“International Law, Power and Policy: A Contemporary Conception,” 82 Hague Reports (1953 I) pp. 137-259 on p. 144)Google Scholar. On the other hand, Wengler seems to regret the possible erosion of the concept of legal obligation, cf. Wengler, “Rechtsvertrag, Konsensus und Absichtserklärung im Völkerrecht”, 31 Juristenzeitung (1976) pp.
193-197 on pp. 193-197. 197.Google Scholar Traditional systems for retrieving and navigating text search legislation, where a lawyer had to type certain words to acquire the section of legislation he was interested in. This was very inefficient, because a legal rule can be fragmented, with ownership of the legal system regulating a legal norm in a social relationship contained in different laws. The fragmentation of legislation has thus exacerbated ineffective enforcement and created significant obstacles for lawyers in legal research, especially for those who wanted to retrieve legal information but had no legal training. The ontological model provided an effective solution by categorizing legislation according to the importance of the legal standard it contained, which increased both the clarity and efficiency of the research. [12] A legal norm is a binding rule, principle or norm that sovereign power organizations adopt and apply to govern social relations. Legal norms determine the rights and obligations of persons who are the subject of legal relationships within the competent court at a given time. The competent authorities of the State promulgate and publish fundamental aspects of legal norms through a set of laws that individuals under that Government must abide by, which is further ensured by State coercion. There are two categories of legal norms: normativity, which governs people`s behavior, and generality, which binds an indefinite number of people and cases. Diplomatic and legislative immunity refers to cases where legal norms are designed to explicitly target and bind only a minority, such as soldiers and civil servants. [1] Scott Shapiro`s theory of planning law[2] is based on two concepts: the nature of legal institutions and the nature of legal norms.
The planning theory thesis argues how legal norms function as common plans that legal institutions implement to exercise social control and governance, regardless of the moral merits of those norms and institutions. [3] In a legal sense, retroactivity refers to a law that affects or invalidates a person`s acquired rights acquired under an existing law by creating new obligations based on predetermined considerations. Legal norms can be classified either as true retroactivity, where norms affect legal relationships that existed before their effect, or as pseudo-retroactivity, which refers to how the validity of former legal relationships can be influenced by divergent norms. [1] 111. Meyer-Wöbse, , Rechtsfragen des Exports von Kernanlagen in NichtkernwaffenStaaten (1979) p. 61 ff. Google Scholar; Courteix, , Nuclear Exports and Non-Proliferation (1978) p. 63Google Scholar (although he calls the guidelines gentlemen`s agreements, he seems to interpret them as a bundle of unilateral (legal?) binding statements).
132. This is often used as an argument for or against the legal nature of a particular obligation. See Rotter, op. cit. cit., paragraph 11, p. 415; Schweisfurth, op. cit. cit., No. 3, p. 691.
A rare example of a non-legal agreement published in the same way as an international treaty is the “Memorandum of Understanding” between the United States Department of Energy and the Department of Research and Technology of the Federal Republic of Germany on Cooperation in the Field of Coal Technology of 7 October 1977, published in the Federal Law Gazette (1977) II, 1239. This declaration is clearly not legally binding. Both sides intended to participate in a particular project: “Such an intention. are identified by signatures… (last paragraph of the statement). Hart explains legal normativity by referring to social facts instead of Kelsen`s approach, which has a methodological dualism. Contrary to Kelsen`s belief in the radical independence of law from morality, he argues that legal theory is fundamentally worthless, Hart does not have such an extreme view and instead advocates a soft positivism. It recognizes that conformity with moral principles or material values may be included in the criteria for determining the validity of legislation. In explaining the normative power of law, Hart focuses on the context in which normative propositions exist, which has significant power to condition the meaning of these statements. [11] 41. On the difficulty of distinguishing between a political agreement on the conclusion of a contract and a legal pact of contrahendo, see also Wengler, paragraph 12, p. 334.
In its factual sense, Kelsen proposes that “the law is an order of human behavior.” .
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