Abstract
The work of a legislator is to contribute to the set of rule s that gives structure to the “world of law”. This world of law consists of all the facts, rule s and other entities that exist through the application of legal rule s. Logic may well be interpreted as a theory of the (logically) necessary relations between facts in the world. This article combines these two ways of looking at legislation and logic. It analyses a number of central legal notions such as right , duty , obligation , power and competence in order to provide insight into the structure of the world of law. The relevance of this insight for legislators is illustrated by means of an example about the transfer of a piece of land, which shows how facts in the world of law are glued together by different kind of rule s. It is also illustrated at the hand of the question how law can affect the “outside world” and how legislators can contribute to this impact by providing proper “pathways through the world of law”.
This article is based upon, systematises, and adds to earlier publications of the author, in particular Hage and Verheij (1999), Brouwer and Hage (2007), and Hage (2005a, 2007, 2011a,b, 2012, 2013a,b, 2014). The author wants to thank Michał Araszkiewicz and Krzysztof Pleszka for valuable comments on a draft version of this article which have led to substantial changes, and hopefully improvements. Of course, the responsibility for remaining errors remains with the author.
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Notes
- 1.
Anybody familiar with the mainstream literature about logic will recognise this characterisation. And yet, when I tried to find references to support this claim, I found many different circumscriptions of the nature of logic.
- 2.
This article is written in English, and much literature on jurisprudence has been written in English or another Indo–European language. As a consequence, the ontological presuppositions of Indo–European languages may have exerted a considerable influence on jurisprudence in general and the following discussion in particular. Although this is unavoidable, it is something to keep in mind.
- 3.
Predicators are expressions which are typically used to say something about one or more individuals. They usually are verbs or contain a verb in combination with predicates and or nouns. Examples of predicators are “bribes” as in “If a person bribes an official\(\ldots\)”, and “is defect”, as in “If the sold good is defect, the seller must replace it”.
- 4.
Often it is not easy to tell a factual counterpart of a rule from the rule itself, but if it is an appropriate reaction to say “That is (not) true” then what was said should be interpreted as the expression of a factual counterpart, and otherwise not.
- 5.
This distinction was inspired by a distinction made by Leiter (2002, 969–989), between different kinds of objectivity.
- 6.
Even more fundamentally, one may wonder whether adoption of the view that the world as set of all facts is language–dependent does not commit to the view that there are no objective facts at all. In the present article, that line of thought will not be explored any further.
- 7.
- 8.
Arguably, also acts based on legal values, legal standards, or legal principles belong to the world of law. This is a line of thought that will not be explored here, however.
- 9.
Counts–as rules can also bring about that some facts count as other facts, but most of the times this is derivative from some kinds of individuals also counting as individuals of another kind. For instance the fact that a book was delivered counts as the fact that the ownership of the book was transferred, because the delivery counts as a transfer. This theme is explored a little more in Hage (2005d).
- 10.
The relation between how–to rule s and counts–as rule s is the same as that between respectively rule s of change and rule s of recognition in Hart’s theory of Law ((Hart 2012, 94–96),). As a matter of fact, rule s of change are a kind of how–to rule s, while rule s of recognition are a kind of counts–as rule s.
- 11.
Notice that this timeless relation between the conditions and the consequences of a fact–to–fact rule is compatible with the existence in time of the rule . Only as long as the rule exists, the condition facts and the conclusion facts go together in a timeless fashion.
- 12.
This last rule may also be interpreted as a counts–as rule .
- 13.
- 14.
For more extensive arguments why there can be deontic facts, see Hage 2013a and Draft.
- 15.
This action type may be the realisation of some state of affairs, as in “killing”, or “closing the door”. It may also be attempting to realise a state of affairs as in “promoting optimal health care”.
- 16.
The 3 and the 4 stand for the number of parameters of the predicator Duty .
- 17.
The operator ⊃ stands for the material conditional.
- 18.
As Michał Araszkiewicz pointed out to me, there may be a series of modes, as in murdering somebody particularly cruelly. As we will see later, there are reasons to treat conditional duties as duties with a modification of the action type.
- 19.
That it is possible to have such conflicting duties can be seen from the fact that the violation of one of these duties may be considered unlawful and lead to liability for damages. This is particularly the case if the presence of conflicting duties is to be blamed on the person who suffers the conflict (culpa in causa). Interestingly, the existence of a conflicting duty is sometimes regarded as a reason why non–compliance is not considered unlawful, because of force majeure.
- 20.
Here and in the following subsections I write that some sentences “should be” (in)consistent. The reason why I chose this vague terminology is that I do not want to limit the value of the analysis to a particular formal system. My point is that logical systems adequate for modelling the deontic relations analysed here should represent the sentences as (in)consistent.
- 21.
The law knows some exceptional circumstances where such a claim is lacking, for instance in the case of obligation es naturales and stipulationes alteri. Cf. Zimmerman (1996, 7–10 and 34–45).
- 22.
Michał Araszkiewicz pointed out that one can promise a reward to, for instance, whoever brings back my lost dog. This would lead to an “undirected obligation ”. I am not completely sure that this is correct. Possibly the obligation only comes into existence as soon as somebody brought the dog back, and then the claimant is individualised.
- 23.
We will see in Sect. 1.7.5 that “ought” does not represent this common element.
- 24.
The N at the beginning of the formula stands for the necessity operator. The precise characteristics of this modal operator are left unspecified on purpose.
- 25.
- 26.
Strictly speaking, the operation of obligation creating rule s involves an element of time. This is discussed, in the context of juridical acts, in Hage (2011a,b). For the present purposes this temporal element is not important and to keep the example relatively simple, it has been ignored in the formalisation.
- 27.
A possible world is in this connection defined as a maximal set of states of affairs (possible facts), where being maximal means that it is not possible to add new states of affairs to the world that are compatible with the states of affairs that already exist in this world.
- 28.
- 29.
- 30.
The individuation of legal rule s (“laws”) is discussed extensively in Raz (1980, Chapter IV).
- 31.
- 32.
For an exposition of the difference between consensual and tradition systems, see van Vliet (2012).
- 33.
To make the picture easier to understand, the input facts and the output facts have been positioned outside the world of law. Since both categories of facts are defined in the next subsection as parts of the world of law, be it on the border with the outside world, the picture is not fully accurate. Figure 1.5 will be more precise in this respect.
- 34.
- 35.
An output fact may at the same time function as an intermediate fact. For instance, a legal duty may lead to behaviour of the person under this duty , but it may also be a precondition for the existence of another intermediate fact, such as the unlawfulness of the behaviour which violates this duty . This possibility is also indicated in Fig. 1.5: Input, intermediate and output facts.
Fig. 1.5 
Input, intermediate and output facts
- 36.
- 37.
Here I distinguish between powers and competence s, which are seen as different phenomena which exist next to each other. This follows the discussion of this subject in Hage (2013c). The terms “power” and “competence ” are sometimes seen as alternative ways of designating the same phenomenon. See for instance Spaak (1994, 1).
- 38.
This is the seemingly obvious point that Kelsen made by his demand that legal systems must be effective because otherwise the presupposition of the basic norm would not make much sense. See Kelsen (1960, 204). Hart made a similar point by claiming that participants in a legal system should by and large take the internal point of view towards the rule s of the system. See Hart (2012, 103/4).
- 39.
To keep the exposition relatively simple, the possibilities that claims are held by more than one person or organisation, or against two or more persons or organisations, are ignored. For the main argument line these possibilities hardly make a difference.
- 40.
The following analysis is based on Brouwer and Hage (2007), but deviates from it in a number of details.
- 41.
Cf. the title of Mackie (1980).
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Hage, J. (2015). The (Onto)logical Structure of Law: A Conceptual Toolkit for Legislators. In: Araszkiewicz, M., Płeszka, K. (eds) Logic in the Theory and Practice of Lawmaking. Legisprudence Library, vol 2. Springer, Cham. https://doi.org/10.1007/978-3-319-19575-9_1
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