Legal Theory (Forthcoming)
30 Pages Posted: 13 May 2020
Date Written: May 1, 2020
The norms of a legal system are relevant in deciding on what rights and duties people have within that system. But many norms which are not part of a legal system will also be relevant within it. These other norms may include the norms of foreign legal systems, games, clubs, contracts, grammar, arithmetic, unions, universities, and so on. What distinguishes norms which are part of a legal system (“local norms”) from norms merely relevant within it (“adopted norms”)? Where, in other words, are the law’s boundaries? There are three main answers in the literature. Matthew Kramer claims that adopted norms are under the control of non-local actors, whereas local norms are not. Scott Shapiro flips that idea on its head. Adopted norms are not created through the exercise of local powers, he says, whereas local norms are. Joseph Raz, meanwhile, distinguishes adopted and local norms based on the reasons officials have for relying on them. But there are obvious counterexamples to each of these answers. My own answer draws on a distinction in constitutional scholarship between direct and indirect relevance. Roughly, directly relevant norms suffice for some conclusion about people’s rights and duties. Indirectly relevant norms bear on the interpretation, applicability, or exact consequences of other norms. Whereas local norms are directly relevant, adopted norms are merely indirectly relevant. Thus, what distinguishes the two types of norms is the directness of their legal relevance. I conclude by showing that it makes a significant practical difference on which side of the boundary a norm falls.
Keywords: norms, legal system, Raz, Dworkin
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