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This chapter discusses the new substantive principles of international development law with specific reference to: (1) parties (and the rights and privileges of different parties to the development process); (2) fundamental law principles of mutuality, the duty to cooperate, equitable participation in development, and transparency; (3) establishing legal norms (contextual and absolute); (4) a taxonomy of international development law (absolute norms, globalized laws, and relative norms); and (5) the institutional framework for international development is discussed in terms of enforcing legal norms. The chapter provides a new, researched template of analysis in which to structure the legal study of international development It sets forth the merits of establishing a World Bank Capital Transfer Appellate Board. The chapter proposes that capital transfers (as part of the development process) be subject to an adjudicatory process of review, thereby creating a new substantive body of public international law.

To sustain a viable social science of law and courts, testable propositions, appropriate research designs for testing those hypotheses, and comparative materials are needed; Ch. 4, and the two papers within it, discuss and use three strategies for building theory through testing and comparing. This second paper, which was originally published in the American Political Science Review in 1998, employs econometric and other modes of statistical analysis as well as qualitative ‘process tracing’ to evaluate specific causal propositions about how European Community (EC) integration and the construction of the European legal system (as enforced by the European Court of Justice) have proceeded. The research design constitutes a mixed means of testing: (1) deductive derivation of hypotheses from materials developed in prior comparative research, (2) collection of data to operationalize the theorized variables, (3) testing of the hypotheses through quantitative data analysis, and (4) cross-checking of these results and exploration of other theorized relationships or dynamics (qualitatively). The research leads Stone Sweet and Brunell to propose a theory of European legal integration (i.e. the process by which Europe has constructed a transnational rule-of-law polity), which integrates three interdependent causal factors: contracting among individuals, third-party dispute resolution, and the production of legal norms. The theory is tested, with reference to the EC, in two stages: first, the construction of the legal system is explained and the relationships between the three key variables are analysed over the life of the EC; second, the impact of the operation of the legal system is examined on governance (i.e. on policy processes and outcomes) at both the national and the supranational levels.

This chapter argues that there is a picture of how law works that most legal theorists are implicitly committed to and take to be common ground. This Standard Picture (SP, for short) is generally not acknowledged or defended. SP leads to a characteristic set of concerns and problems and yields a distinctive way of thinking about how law is supposed to operate. The chapter suggests that the issue of whether SP is correct is a fundamental one for the philosophy of law, more basic, for example, than the issue that divides legal positivists and anti‐positivists. The chapter has three main goals: 1) to identify and articulate in some detail the Standard Picture; 2) to show that SP is widely held and has important consequences for other debates in the philosophy of law; 3) to show that SP leads to a serious theoretical problem.

The normative function of empowering means: conferring on an individual the power to posit and apply norms. A moral norm empowers a father to issue commands binding on his child. A legal norm empowers certain individuals to create legal norms or to apply legal norms. In such cases it is said that the law confers a legal power on certain individuals. Since the law regulates its own creation and application, the normative function of empowering plays a particularly important role in law. Only individuals on whom the legal order confers this power can create or apply legal norms.

The normative legal functions were earlier said to be: commanding, permitting positively, and empowering a certain behaviour. But not the negative permitting of behaviour which is not the object of any legal norm because it is neither commanded nor forbidden by any legal norm. Nevertheless, negatively permitted behaviour can be considered to be legally regulated (not positively but negatively), for it is subject to legal regulation in the sense that it can become the object of a legal norm, and in particular that it can be legally commanded or forbidden. Even behaviour which is not determined by any legal norm is subject to the legal order — if not actually, at least potentially. Behaviour which is not the object of any legal norm, which is legally neither commanded nor forbidden, is free.

Since human behaviour, as well as its conditions and its effects, takes place in space and time, both the area and the time in which the states of affairs specified in the norm take place must be specified in the content of the norm. The validity of norms regulating human behaviour — and of legal norms in particular — is spatio-temporal validity, in so far as these norms have spatio-temporal events as their content. That a norm is valid always means that it is valid for some area and for some time, that is, that it is about events which have to occur somewhere and at some time. A norm's relation to space and time is the norm's territorial and temporal sphere of validity. It can be limited or unlimited. A norm can be valid for a certain area and a certain time, as specified by it or by some higher norm.

General norms are hypothetical, that is, they attach a generally specified consequence decreed to be obligatory to a generally specified condition. But individual norms can also be hypothetical. This is true particularly of legal norms. As has already been mentioned, a court can decide ‘If within three weeks of the coming into force of this decision Maier does not pay Schulze the 1,000 due to him, execution is to be carried out upon his property.’ Or ‘If within three years of this decision Maier is found guilty of a punishable delict, he is to be imprisoned for three years beyond the punishment inflicted on him for the delict.’ There thus arises the problem of the conditional norm.

This chapter addresses the prospects of the association between academic disciplines that have rarely been thought to be mutually compatible — on one hand the academic study of law (specifically, the theoretical part of jurisprudence, illustrated by Hans Kelsen's Pure Theory of Law) and on the other hand the academic study of human behaviour and society (specifically, interpretive sociology, represented by writings of Max Weber). A passage from Nicola Lacey's recent biography of H. L. A Hart, A Life of H. L. A. Hart: The Nightmare and the Noble Dream, sets the scene while introducing lines of discussion to be pursued further here. The passage refers to the occasionally disputed question of whether Hart read, and was influenced by, the work of Max Weber. It specifically investigates a few unexplored issues arising from possible ‘resonances’ between the writings of Kelsen and Weber. It demonstrates how Kelsen's concept of the Reconstructed Legal Norm or Rechtssatz and the Kelsenian concept of legal meaning or rechtliche Bedeutung move in striking ways towards a (Weberian) interpretive sociology despite Kelsen's evident role of the Reconstructed Legal Norm, and the related idea of ‘imputation’, to resist the gravitational pull of sociology.

This chapter analyzes recent trends in legal logic and legal theory and provides a general reconstruction of the debate on legal defeasibility. The chapter is organized as follows. The chapter first gives a brief characterization of the concept of ‘defeasibility’ in general and of ‘legal defeasibility’ in particular. The chapter is then looks to a substantive analysis of the defeasibility of legal standards. It then provides an overview on the question of whether it is meaningful to assert that the criteria of identification of a legal order are defeasible and, if so, what the repercussions on the validity of legal standards are and their possible relations to the applicability of legal standards. The next section of the chapter elaborates on the distinction between validity and applicability of legal norms in light of defeasibility, and proposes a novel distinction between internal and external defeasibility of legal standards, based on the difference between the defeat of the normative content of a legal standard and the defeat of its applicability or validity. The final section briefly presents some possible future applications of the analytical tools proposed in the chapter.

The classical approach pictures legal systems as structures consisting of deontic norms and norms conferring powers to issue deontic norms. Challenging the classical approach, this chapter sketches a picture in which deontic norms are no longer the only type of primary legal norm. Moreover, the notion of ‘empowerment’ as a non-deontic modality is replaced with the idea of legal powers as normative dispositional concepts. It is shown that certain norms relate not to social reality but to the legal system itself. The availability of norms of this type renders legal systems self-adaptive. Finally, legal systems are systems of individual legal institutions. Individual legal institutions are valid over-all pictures of social reality as it ought to be. The variety of linguistic devices required for drawing such legally valid pictures is no less numerous than the variety of linguistic devices required for describing the world surrounding us.

A command is objectively observed or violated if the behaviour it prescribes actually takes place or does not take place (if the person to whom something is commanded actually performs or does not perform the behaviour in question, if his behaviour agrees or does not agree with the command), whether or not he is aware of the command. But a command is ‘observed’ or ‘violated’ subjectively only when the addressee's behaviour agrees or fails to agree with a command of which he is aware, only when he wants to behave (or not to behave) in a way which agrees with the meaning of an act of commanding which he understands, or he wants to behave in the opposite way.

The words ‘right’, ‘entitlement’, ‘to entitle’, ‘to be entitled’ have a number of quite different significations. That someone is entitled or has a right to behave in a certain way can mean that his behaviour is free, i.e. neither forbidden nor commanded, and so is permitted in a negative sense. It can also mean that it is permitted in a positive sense. If someone has a duty to another person to behave in a certain way, the other person is said to have a right to this behaviour. The right to a certain behaviour of another person is a reflection of the duty of the other person.

When ethics describes a general norm of morality by means of the sentence ‘If someone is in need, one is to help him’ or when legal science describes a general legal norm by means of the sentence ‘If someone borrows money, he is to repay it’, then the linking of condition and consequence clearly does not have the character of causal necessity. It is expressed by ‘ought’ and not ‘must’. It is a normative and not a causal necessity. It is possible for someone to be in need and not receive any help, or to borrow money and not repay it. This normative necessity in the relation between condition and consequence is to be found also in the linking produced by a general legal norm which prescribes a coercive act, a so-called sanction, as a consequence in the event that a certain behaviour occurs (a behaviour characterized as illegal).

The influencing of law-creation by principles of morality, politics, and manners is sometimes consistent, sometimes less so. The moral principle of individual freedom, for example, is expressed in a positive legal system as freedom of contract. But a legal system which can be said to embody the principle of freedom of contract does not allow all agreements concluded between individuals to be valid. A promise of marriage is not binding, according to many positive legal systems; likewise contracts concerning immoral behaviour. The principles of morality, politics, and manners discussed in this chapter can be called ‘legal’ principles only in the sense that they influence the creation of legal norms by competent legal authorities. But they remain principles of morality, politics, and manners, and they must be clearly distinguished from the legal norms whose content agrees with them.

This chapter is concerned with the question of whether certain principles of so-called bivalent (true–false) logic, specifically the principle of contradiction and the rules of inference, are applicable to norms of morality and law. That they are applicable to norms of positive law has been almost universally assumed in traditional legal theory. The question is not whether these principles are in fact applied to norms — and to legal norms in particular — or whether their application is desirable or not from the point of view of legal politics. These questions have been the object of much debate in legal literature, on the assumption — considered to be obvious — that the principles are applicable.

This chapter contends that with regards to legal deductive arguments, none can be more convincing in its conclusion than in its premisses. Hence, whoever makes such an argument has to stand ready to defend and justify the premisses, using for this purpose the various rhetorical or practical arguments studied in the rest of the book. Legal dogmatics can never dare to be too dogmatical in style. All statements of institutional fact, and all statements of legal norms, have a certain defeasible quality.

This chapter is concerned with the content of legal norms governing the interpretation of legal texts by legally authoritative actors in a legal system. As such, a theory of legal interpretation is a theory of the content of the law, codified or uncodified, governing legally authorized interpreters. Thought of in this way, it is a nonnormative empirical theory related to, but distinct from, (a) empirical theories about what the mass of judges in a particular legal system actually do in the cases before them; (b) moral theories about what they morally should do in particular cases; and (c) politically normative theories about what the role of the judiciary should be in an ideal system. The most important question to be answered by such a theory is, what precisely is required of legally authoritative interpreters, how much and what kind of latitude are they allowed, and what factors are they to take into account in their interpretations?

When the norm commands, empowers, or positively permits a certain behaviour, it is not the human being in his entirety which is subject to a norm, but always only a certain behaviour of his. Human beings as such are concerned by norms only to the extent that a norm decrees to be obligatory a certain act against a specific human being (for instance, a legal norm prescribing the death penalty or deprivation of freedom). But this relation does not represent the personal sphere of validity of a norm. This sphere of validity is concerned with the personal element of the behaviour specified in the norm. It can also be limited or unlimited. A moral order can claim to be valid for all human beings, that is, the behaviour specified by the norms of this order is the behaviour of every human being and not merely of human beings specified by the moral order.

The third chapter emphasizes the deliberate and free aspect of Jewish merchants’ choice of commercial vehicles through a close reading of court practice. The chapter reveals the (Rabbanite) Jewish court to have educated Jewish merchants as to Jewish legal norms and then to have given those merchants some flexibility to contract agreements that did not accord with those norms. Since Jewish merchants could easily have chosen mercantile structures that did not accord with Jewish law, the fact that they often chose structures that did accord with Jewish law should be understood as an attempt to use commercial practice as a vehicle for affirming a distinctive Jewish identity.