The Systematization of Legal Norms: A Response to Navarro and Rodríguez

In Luka Burazin, Michael Steven Green, and Giorgio Pino (eds), Jurisprudence in the Mirror: The Civil Law World Meets the Common Law World (forthcoming, OUP)

12 Pages Posted: 8 Apr 2022

See all articles by Andrew Halpin

Andrew Halpin

National University of Singapore (NUS) - Faculty of Law

Date Written: February 15, 2022

Abstract

This contribution to a volume combining essays from civilian legal theorists with responses from common-law theorists commences with some brief observations on the different legal traditions and their possible influences on the approaches taken to theory within them. It is suggested that while theorists from both sides pursue matters of common concern, it is possible to detect some variations in tendency between their respective approaches. Notably, for present purposes, a greater sympathy for systematization (in particular, logical systematization) can be found on the civilian side.
The focus of the chapter from Pablo Navarro and Jorge Rodríguez on an idea of normative relevance is shown to be strongly connected to their promotion of the possibility of the systematization of legal norms through the resources of deontic logic. Three strands of scepticism are brought to bear upon this prospect. A historical reference to common-law thinking as voiced by Sir Edward Coke raises preliminary doubts.
A practical analysis of the disposition of particular cases undermines the model employed by the authors which depends on a deductive process from a “relevant” factor found in a legal norm. A key distinction between legal materials and legal norms is introduced at this point, and through careful consideration of three cases it is suggested that the judicial response to legal materials may (sometimes) be deliberative rather than deductive.
A technical assessment of the authors’ approach is centred on the question of what amounts to an appropriate logic for systematizing law. Within the confines of this response a limited number of key aspects of their argument are addressed. However, the objections raised here are considered sufficient to challenge the viability of their systematization project. A severe restriction on the assumed scope of deontic logic is proposed, drawing on Bentham’s logic of imperation (commonly regarded as a precursor of modern deontic logic). The conventional acceptance of a logic of norm-propositions as providing a valuable part of deontic logic is questioned, through interrogating the ambiguity of the notion of norm-proposition across four different statements relating to norms. And finally, the authors’ idea of normative relevance is shown to be artificially restricted so as to avoid acknowledging the presence of contestability within the factors taken to be relevant for a particular legal system. Admitting such contestability is viewed as radically changing the theoretical landscape, but not dividing it along civilian and common-law lines.

Keywords: systematization of law, deontic logic, normative relevance, norm-propositions, Bentham’s logic of imperation, common-law thinking, legal materials

Suggested Citation

Halpin, Andrew, The Systematization of Legal Norms: A Response to Navarro and Rodríguez (February 15, 2022). In Luka Burazin, Michael Steven Green, and Giorgio Pino (eds), Jurisprudence in the Mirror: The Civil Law World Meets the Common Law World (forthcoming, OUP), Available at SSRN: https://ssrn.com/abstract=4067735

Andrew Halpin (Contact Author)

National University of Singapore (NUS) - Faculty of Law ( email )

469G Bukit Timah Road
Eu Tong Sen Building
Singapore, 259776
Singapore

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