Abstract
In this chapter and chapters 8, 9, 10, 11 and 12 deal with the topological J-concepts. In this chapter the author defines the concepts “legal case” and “operative fact”. After analysing the structure of legal cases, he introduces a distinction between single-system and multi-system topology, the former being the relation between a legal case and the applicable rules when the legal system itself remains constant, while in the latter the rules involved belong to two or more different legal systems. Topological spheres of legal rules are also presented: the linguistic sphere of cases; the sphere of operative facts, i.e., the set of cases to which a rule is actually applied; the sphere of influence, i.e., the set of potential operative facts, and the sphere of operation, i.e., the union of the spheres of operative facts and influence.
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Notes
- 1.
From what follows it should be obvious that I do not use the term “topological” in the same sense as in Müller-Mall (2013).
- 2.
- 3.
The concept is investigated more thoroughly in Spaak (1994), p. 104–118.
- 4.
Naess (1966), p. 97.
- 5.
Naess (1966), p. 108–110.
- 6.
Naess (1966), p. 106–108.
- 7.
This distinction has been well known for a long time. We find one of its first formulations in jurisprudence in Heck (1932), p. 52. Heck distinguishes between Begriffskern (“the nucleus of the concept”, my CL) and Begriffshof (“the halo of the concept”, my UCL). Cf. Hart (1994), p. 128 about “the open texture” of legal rules.
References
Alchourrón CE, Bulygin E (1971) Normative systems. Springer, Berlin
Austin J (1911) Lectures on jurisprudence or the philosophy of positive law, vol II, 5th edn. J. Murray, London
Hart HLA (1994) The concept of law, 2nd edn. Oxford University Press, Oxford
Heck P (1932) Begriffsbildung und Interessenjurisprudenz. J.L.B. Mohr, Tubingen
Müller-Mall S (2013) Legal spaces. Towards a topological thinking of law. Springer, Berlin
Naess A (1966) Communication and argument. Allen & Unwin, Crows Nest
Spaak T (1994) The concept of legal competence. Dartmouth Publishing Co Ltd, London
von Wright GH (1963) Norm and action. Routledge, Abingdon
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Frändberg, Å. (2018). The Juridical Topology: Some Basic Concepts. In: The Legal Order. Law and Philosophy Library, vol 123. Springer, Cham. https://doi.org/10.1007/978-3-319-78858-6_7
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DOI: https://doi.org/10.1007/978-3-319-78858-6_7
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