Abstract
In this chapter and chapters 14 and 15 are dedicated to the clarification of praxeological and methodological J-concepts. In this chapter there is a survey of the basic general praxeological concepts (an expression borrowed from von Wright), like “action” “activity”, “agent”, “behaviour”, “to comply with” or “to observe a rule”, and “to break a rule”. Particular attention is directed to the concept of application of legal rules. The author offers a rational reconstruction of the process of application of law in different stages: pre-applicatory decisions, qualification (which involves the choice of law and finding of prima facie applicable rules, specification, and interpretation), evaluation of evidence, applicative deduction, and choice of individual legal consequence. He also defends a praxeological and realist concept of validity of legal rules according to which a rule r is valid in society S at time t if and only if r is on the whole applied by the law-applying authorities in S at t provided that F (certain procedural and other circumstances). Following a suggestion made by Wedberg, he tries to refute the circularity objection that has been directed against realistic concepts of validity.
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Notes
- 1.
- 2.
See von Wright (1963), p. 36. The concept “action” formulated here is in all essentials based on von Wright.
- 3.
See von Wright (1963), p. 42 ff.
- 4.
See von Wright (1968), p. 38.
- 5.
Cf. Austin (1911), p. 415: “Most of the names which seem to be names of acts, are names of acts, coupled with certain of their consequences” [my italics].
- 6.
On this distinction see Subsection 2.3 above.
- 7.
According to Geach (1957), pp. 1 ff., mental processes like thinking, feeling, seeing and hearing are acts – mental acts.
- 8.
Von Wright (1968), p. 12, regards concepts such as “choice”, “decision”, “desire”, “freedom”, and “will” as praxeological concepts.
- 9.
Subsection 1.6 above.
- 10.
See Subsection 1.2.3 above.
- 11.
See Subsection 4.4.
- 12.
Ibid.
- 13.
The Swedish Supreme Court case NJA 2007, pp. 997 ff.
- 14.
Cf. Subsection 6.6 above.
- 15.
We investigated such transformations in Chapter 4 above.
- 16.
See Chapter 8 above.
- 17.
Kelsen (1996), p. 12.
- 18.
The “detection” of performatives is attributed to J. L. Austin. See his How to do Things by Words, 2nd ed., 1976, passim.
- 19.
Cf. Subsection 4.4 above.
- 20.
Introduced in the beginning of Subsection 13.3.2.
- 21.
Ibid.
- 22.
Suppes (1967), p. 59 f.
- 23.
The Swedish Supreme Court case NJA 1959, p. 254.
- 24.
A most illuminating investigation of positive law validity is Munzer (1972). Munzer offers a penetrating critique of the theories of Hart, Kelsen, and Ross. Particularly convincing is his refutation of Kelsen’s and Hart’s idea that validity is warranted by one single, ultimate master rule (Kelsen: the basic norm, Hart: the rule of recognition). Munzer argues that validity is better explained by substituting “rules of smaller scope” for such master rules. His own definition of validity is that it is “legal strength or adequacy” (pp. 3 and 37), meaning that “if something is strong or adequate in law, this means that it cannot be ignored or overthrown” (p. 39). My objection to his elaboration of this idea is that it is not precise enough to be useful for lawyers.
- 25.
Holmes (1897).
- 26.
Cf. my distinction between legal rules in a stricter and in a wider sense in Subsection 3.2 above.
- 27.
Ibid.
- 28.
See Subsection 13.4.1 above.
- 29.
NJA 1950, pp. 417 ff.
- 30.
Dworkin (1977), pp. 279 ff. and 331 ff.
- 31.
Wedberg (1945), pp. 10–13. Unfortunately this work is only available in Swedish.
- 32.
Subsection 2.12.
- 33.
See note 24 above.
- 34.
Munzer (1972), pp. 27 and 40 f.
- 35.
Munzer (1972), p. 63.
- 36.
See however Subsection 1.1 (The lawyer as jurist (legal scholar)) above.
References
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Frändberg, Å. (2018). Some Basic Praxeological Concepts: Application of Law and Validity of Law. In: The Legal Order. Law and Philosophy Library, vol 123. Springer, Cham. https://doi.org/10.1007/978-3-319-78858-6_13
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