This paper presents an alternative concept of law that considers it as a generalization of normative complex. It claims that one must differentiate from a political structure and law itself.
It is explained that it exists an special rule called rule of vectura that allows transport of norms and rules to a legal system of a political structure.
In the following lines we will point out a series of ideas related to the notion of Law and the role it has among a factual regulation of a legal system. As it is believed, all the judicial actors have –or should have– a Law concept that help them understand and apply rules and norms derived from the system. In other words, we defend the necessity to differentiate the system norms and a concept o law from the justices and judges. Law can not be reduced to a group of rules from a particular system, under penalty of falling into a vacuous voluntarism of a political structure. However, those norms and rules only have meaning if they come from a thesis about the Law. Thus, it is inaccurate to confuse the genesis of a system –for example, under classic notions of Constitutional Law as a constituent power– with the origins of Law.
On the other hand, we do not believe that there only exist a unique and correct theoretical construction about Law, much less that only the functionaries are the ones able to give a «practical» answer of this theory. This duty is assigned to a Law theorist or philosopher. The political structure of a State can or cannot foster a determined idea, what is incorrect is reducing their rules to a single group –a theory or comprehension–.
It is necessary to clarify that we will not offer what is considered a theory about Law, much less –for the moment– we will approach the problems it carries with it. We will simply focus on a proposal about the elements that we believe have to be estimated by judges, in order to understand and interpret the Law. In other terms, we will offer some guidelines about what we consider it has to be part a concept of law, with a special emphasis in the judges’ duties. To resolve these cases, judges require a comprehension of Law –and what is the field of action of a judicial philosopher– that is beyond the norms and rules from a judicial system, advocated to defend and make it effective. They need at least a notional minimum that allow them act with efficacy. Among these minimums we can find the fact that judges cannot confuse the understanding of norms and rules from the legal system with law itself. This might look as something obvious, considering the practical exercise.
Norms and rules from the system are the result of Law and not vice versa. We will claim that the judges have –or should have– a concept about Law. We will offer the characteristics –or part of them–, that constitute a concept of Law. In this aspect, we will understand that Law is a special form of reasoning; a technique or reasoning method. It is possible to differentiate it from the existence of an incardinated judicial system on a political structure.
In this paper we will provide a blueprint of what Law is as a special way of reasoning. Such is the cause that we can assert that Law is a generalization of normative complexes[1]. The results of this technique are ruled and norms that logically need a political structure to be legal[2]. However, it is important to point out the way in which the normative Law results are integrated to the structure previously mentioned. By this virtue, the genesis of the system corresponds to a legal rule that we call rule of vectura[3]. Such rule determines the base of other rules that can be essential to delimitate the system; these rules are an identification of the vectura norms. Finally, our assertions determined a different presentation of legal validity. Validity is based on a technique –or one of the techniques– that imply Law: a generalization of normative complexes.
Therefore, before we present our idea is necessary that the alternative concept of Law we are offering is unrelated to the existence of an ultimate or original source of the legal aspect. It pretends to isolate the base or common foundation that characterizes the discussions about positivism and iusnaturalism.
What is the base, foundation or common element? The common foundation consist into the postulate in which Law comes from or it originates from a special type of source. Both iusnaturalism and positivism share this common foundation. This source can cover multiple forms, be authoritarian or based on someone else authority –the State, legislators, judges, etc.– or something that is unreachable for us; it can be abstract or intrinsic to the characteristics or peculiarities of reality in general, of the perception of reality from humans, or as a result of its condition as an alive autonomous human being. In this aspect it does not matter, which form it can acquire either the naturalism and the iusnaturalism; at the end it is a source the common cause and the stating point to explain Law. What positivism and iusnaturalism pretend is to vivify or concrete a source –we insist, it might be an author, authority (the state) or a principle– from the one we can understand the legal world. The criticism directed from one entity to the other one could reach the suitability of a source, but it cannot be destroyed, because it will represent the end of both of them. Both thesis will remain exposed in the following essential principle:
It is possible to be claimed that iusnaturalism does not «look» the source, but the merits; however, we can ask ourselves, why are these merits so relevant? The answer is because they are fair, rational, good, divine, etc. Law is in this case the one that comes, emerges, is deduced, is feasible, or can be found in the sources of justice, kindness, good or god. Therefore, Why does Law has validity? Because God ordered it, because it is fair, because it is the result of reasoning, etc. The contrast with a «neutral» source –such as positivism– leads to the distorted belief that natural Law only takes into account certain contents. What happens is that natural law avails from a compromised source or that has a special load to human beings. This does not void the common principle of laying into a source as it happens in the positivism.
Conklin recognizes that there are two perspectives: The tradition of Natural Law that claims that actors should evaluate the substantive content of a rule to make it authoritarian and the tradition of legal positivism, in which the authority of a norm is not determined by doing a reference to the substantive content. The content is separated from its authority. Which makes it mandatory is its source, its grounding or its arche[4].
Nonetheless, both traditions agree in recognize a common point, which means, an origin or an invisible source[5]. This base or common foundation of both theses allow them to build their respective conceptions about Law; which are clearly united by their foundation that can be seen as an equivalent.
Now it is clear that the problem does not lay into finding an ideal source that could end merging both theses, but into stating the possibility that such foundation could be able to; at least, explain or conceive the Law. Deep inside that source –however it is built– is an invisible principle and exterior to all the legal norms; an inexistent foundation, or at least unnecessary. Our proposal tries to be an outsider of that source or arche that in plenty of times comes to represent an assimilation of the Law to a political structure of a superhuman entity.
Law is a generalization of normative complexes. Such normative generalization is a technique or characteristic method and the cause of it scientific nature, while constitutes a structure of human thinking, that starts elaborating a cumulus of norms and rules that are independent, differentiable, susceptible to be organized and that give an answer to reality problems in which human beings develop themselves.
The generalization is independent to any political or religious authority; it is not an object itself or something supersensible to be achieved. It is unnecessary and useless a search for an ultimate source or something behind the technique. It is evident that human beings are its «source» as well as the other sciences. This should never be understood in the sense that there is one unique and illuminated human being that can be in charge of the concept of Law. The matter is simple, everyone can «practice» Law. In our societies this is done unconsciously or without having a special degree. It is undeniable that history offers proof that some apparently can «impose» the norms; however, it should be important to remember that one should not confuse the step to the praxis of those norms with a notion of Law.
The generalization is settled as an essential note of the legal by virtue of a slice of reality that pretends to serve, in the fundamental problem of men. That reality –as a problem– lies into the relations between humans[6]. It would be reiterative to try to stablish their limits. Plainly, are all kind of human relations. The use of the word «relations» itself implies the fact that there is always going to be more that one human being and relation within human beings. It does not mean a distinction between external and internal aspects. By relations we mean all of them, all the ones that become a point of attention. The moment and place is something clearly irrelevant. Nobody can know the concrete look of the needs and problems that might arise. There will be relations which basis lay in emotive and neurochemical matters –such as consorts– or in profit and benefit tropics –commerce–; there can also be private dimensions, from only one person, it can lay into the extent if the person exempted to enter in any relation; which means, that he is free from any perturbation.
Human relations are complex. It is impossible to extract them from certain contexts or try to group them into compartments. That babel complexity of relations is the objects in which the Law acts. Therefore, here is where it comes its generalization. The legal world «overtakes» the human relations, but these are not the ones that get generalized. It means, only approaches to each relation to assume three elemental attitudes: a) take the norms and rules that arouse in each relation; b) assign norms and rules to that relation; and c) foresee norms and rules for possible or eventual relations– based on its factual needs.
Whatever kind of attitude –or being the three–, Law does not limit to give a lonely treatment; what it does is an extension to any kind of typical relation under the prism of a norm or rule, obtained under the effect of the attitudes; or generalizing a norm or a rule. It is important to clarify that it is inadequate to ask if Law produces its own norms or borrows them. The generalizing technique should not be receiving this kind of questions, because its results are for everyone –in a limit of space–. It is logic that this is not considered into such babel complexity. It should not matter –in the case of norm or rule already included in a relation, how it was produced. For example, Law can «overtake» an special rule from a group of merchants and generalize it to anyone involved in commerce acts, also, to anyone that has been part of a contract– even though it does not have commerce acts involved–. Also, Law can «overtake» a moral norm; or to say it properly, of a certain evaluative result of morality, for example, loving the others. Law can generalize that norm, maybe without «purely »establishing it, but it is able to establish rules that grant respect for the integrity either physical or psychic. In both examples –and in any other that occur among the praxis– it is irrelevant how the norms and rules were produced that the legal generalizes. It does not matter the source which they come from, or could come from. It is irrelevant if it was God, some goddess, a demon, a man, a casualty, luck, etc. Law is not connected to these aspects, because it is not its field of action to determine the validity of that source. If a source of relation to God’s believers get generalized –or extended, as a case of religious freedom to guarantee that every single human must adore a supreme entity without any intromission from state or particular–, the law is incapable to elucidate if God exist or not. In this sense, we can affirm that the source is irrelevant.
Some questions might arise about if Law has the necessary connections to morality or if it will solemnly stablished as a «duty» of Law to estimate the morality –that in a practice most of the times is considering a certain morality–. Also, morality is not the only one implied with Law. With another expression, the morality results are not the only things that can be generalized or important to generalize to the Law. As we have seen that Law is in charge of all the relations among human beings, it is obvious that those are unleadable in their totality to moral relations.
Law approaches other norms and rules from different types of relations. For example, rules with the purpose to create proper buildings can belong to the architecture and physics. Law generalizes those rules that correspond to predicate the norms and rules that are able to regulate the requisites of a construction; in order to build a safe building. Nobody will ask –at least seriously– if those norms are part of Law or part physics or if there is any connection necessary between architecture and Law.
Why is it important to Law make a generalization? The answer is vital, because a generalization is not definitely legal from an arbitrary event. Law asks itself in which way or which are the forms to in which we can make a relation between the basis of complexity and the chaos that is implied in the total amount of relations. Law does not solve that chaos, but it does pretend to erase it; it or at least, minimize it. That is the only way in which the relations between humans can take place and after that a growth of aptitudes from them. That is the main reason to generalize it. Of course, this does not lead to assume a responsibility of inquire and defend a fair Law, or criticize what might look barbaric or atrocious to us. The generalization is unqualified in those aspects. The technique is not good or bad; not fair or unfair. However, the Law results –the results of a generalization– can be good or bad; nonetheless, this does not correspond to the legal realm, but from the evaluation of morality that does not affect the legal approach of them. The technique does not imply any concept nor start from an ultimate category of the legal basis. It is important to not fall into this idea. The base is the reality of relations between human beings. The paths of such assumptions are not from Law or will ever be a precedent. We should also prevent ourselves from the common error to think that this «overtake» of relations between humans would presuppose an idea of freedom –it could be said, in order to produce effective relations– or equality– to be an option to be called relations. The presupposition is not indisputable. It does have a trap –and it is counter historic– to reduce the relations to relations of equality and freedom.
Equality and freedom can be generalized by Law; these are not a cause of generalization. Law would be more appropriate to generalize a norm in which a group of humans are slaves, servants, or vassals; it could preach that some humans are «inferior» to others[7]. Unfortunately, that would be legal. However, Law is not «blind». In its goal of solving the forms in which we can establish relations, it is eager to settle a regulation in which better norms are getting generalized; in the sense that in the human relations area, nobody would like to be the loser in a balance. Its purpose is to find balance; that balance would never precede the Law or become a Trojan horse of morality.
That is why it is inexistent a Law that should be and one that must be; what does exist are applications of such technique. It is possible from time to time its results might not be «pleasant» or might be despised. This would not lead to an ideal Law, supersensible, or «what it should be». In the legal world an unpleasant event only has one solution in the same reality it takes place. Why should we try to conclude that human complexity that Law faces can be solved beyond the technique? It is undeniable that the feeling of despair and sadness that some people might face. Nonetheless, that is not a legal «fault». Solving reality problems –from the field that corresponds to our object–, abstracting itself from the parcel might be inaccurate. Law does not turn relations into something fair, neither guarantees a better world. Its greatness lays into its modesty: pretends to offer a regulation of human relations. The simple pretension of possessing a better world, good or fair is not part of our object of study; which does not imply that while generalizing there are not norms or rules that are consider «good» or «fair» in a determined context. Those evaluations will be part of different subjects.
There is something more important that the disagreement against the despicable events that the human race might experience; the fact that we all are able to execute a generalization –which is different than being professionally prepared to do so–. There is more than one person everyday demanding a generalization or «elaborate» one. The sphere from which they make it irrelevant, because it is unenforceable from a particular compromise. That sphere can be the political, from the sciences, or even from a particular interest –even greedier and ambitious–.For example, a norm that preaches an equal status between men and women; in which equal could mean that both have the same ability to take a role in a society and have a special treat during the participation in all human relations. It is evident that this is far from a strictly moral demand or with a moralizing effect.
A postulate completely different is that, as it happened; Law has generalized norms and rules –or even formulated norms and rules– of some social relations in which –by the virtue of different sources, could be human, «super human» (as the case of confessional societies), but at the end is irrelevant to the legal system –women appear or are considered as a human being subordinated to men or subject of a «special» treatment.
We have seen the ratio of action of the technique into the legal area, now it is our duty to elucidate what ends up generalizing the Law, so which look does the result of generalization might have. As we mentioned, Law assumes three attitudes while approaching the relations between humans, to generalize all the typical actions. However, because it is not only one approach to only one human relation, we should clarify what ends up being generalized.
In the previous paragraphs we claimed that Law is a generalization of normative complexes. That is what gets generalized, the well–known normative complexes. What do we mean with the word complexes? Basically, all the –normative– results of generalizations get «united», without trying to establish a closed group, definite and harmonic. Also, it means that the fact of some of the generalizations can have more than one norm, a complete system of particular relations, or well, could formulate norms that are not necessarily connected or systemized between them. It can be explained by the virtue of all the approaches «unite» norms and rules of all kind– legally morals, habits or traditions, scientific, etc.; that is why they would not be completely harmonic and coherent per se. Law generalizes normative complexes; generalizes groups of norms and rules under the three attitudes we have presented.
A normative complex is different from a normative system. The generalization of complex could define the path of a system, but only at the moment in which is implied within a political structure. To be more precise, complex or complexes refer to a whole made up of complicated or interrelated parts; the sum of factors[8]. In Law, generalization unites –or creates– two or more norms or rules derived from infinite human relationships. This activity does not have a specific endpoint; therefore, it can not be closed or systematized. Another thing, many of the results of the Law conform a system in the context of a political structure.
In the end, the well–known generalization occurs to regulate –or to give some regulation–to the complex relationships between human beings; all relationships –as far as they might seem– will end up connecting or impacting without an indispensable «order» or «logic». Law responds to this phenomenon by trying to offer a regulation to prevent those connections or impacts from producing a devastating chaos.
That is why the Law is a generalization of normative complexes aimed at regulating the multiple and varied relationships between human beings. Note that this does not mean regulation in a certain type of political structure. In other words, the technique of Law does not, by itself, create a framework of practical execution. The normative complexes product of generalization–require to be vivified in the specific relationships: a structure or political organization. In effect, it requires a translation to the praxis if it wants to execute its results. The step from practice, to the execution of this, depends on a result of a rule that rewrites the relationship with a political structure to deploy in reality the regulatory purposes of normative generalization.
Without that rule, the Law would weaken its objective of regulating relations between human beings.
The generalization of normative complexes has to be materialized; the legal world lacks that capacity as a form of reasoning. The relationship requires the power of some political structure. This relationship is reciprocal because the structures need norms and legal rules to remain in the chaos of human relationships. That does not imply that this reciprocity is equitable. It could be the case –it has actually happened– that the results of the Law remain in servitude of the political structure, or be distorted or mutilated. Although, Law will continue to produce its results.
The legal rule in which the Law is structured in the practice of a specific space–time, under the relationship with a political structure, we call the rule of vectura. Its origin is in the Latin vecturae, vectura which means transportation, carriage[9]. Thus, the rule of vectura means the transport to the factual word of the results of the Law –the generalized regulatory complexes–, through the relationship with a political structure. Once the rule is made, it should not be assumed that there are two types of law. The only thing that we have are results that are transported and these do not exhaust the Law.
That special relationship provides rules and regulations that serve it; Which brings us to an additional problem: that of legal validity. What is valid Law or legal validity? In principle, legal validity does not equate to validity or practical reality of legal norms that are transported. The validity is of the Law, not of the political structure. It is not something intrinsic to the legal results transported, although it has an important relationship. Validity is a judgment. That is why we have to distinguish between two situations that are of the Law. We do not refer to differentiate the legal validity of the norms and rules of identification of the vectura norms. The identification rules constitute the answer to the relationship between the Law and the power of a political structure, by virtue of the vectura rule. With these, we take care of the needs of the structure and provides stability to the vectura norms. It means, when the legal results are transported, its practical execution is achieved; nevertheless, it is necessary that there be additional rules that regulate and order that execution. Thanks to this, a stability is achieved that allows the development of the results already transported; and most importantly, it is known with certainty what they are.
That is what the identification rules are made for. It is idle to inquire if they are formal or material, simply, they are there to indicate the way in which they are recognize. They will never have a prior definition by virtue of the infinity of results that may have been transported in the political structure. Among many identification rules that can be familiar to us are the competences of the different departments and state departments; but also those that declare citizens free and equal.
The Rule that contains all the identification rules in our societies is called Constitution. It consecrates them all, which is different from saying that it has the totality of Law. The Constitution serves to identify the transported norms in the context of a political structure, and to indicate the courses for the creation of new rules, on the basis of the technique of Law. It is evident that the rules of identification can not exhaust law nor solve all problems. There will always be the possibility of situations outside the express context and the rules that have to be resolved. Even researching the very scope of the rules of merit requires an effort that does not emanate or resolve in them. The technique of Law, then, has to be exercised.
It can be appreciated that the legal world never disappears. It is an activity in which we can all participate. In the case of the transported results, the identification rules themselves authorize certain human beings to solve the problems in the context of the political structure –but they are the only ones that execute the technique of Law–, for example, the legislator or the judges. Here comes the legal validity. We do not want to say that this is only «useful» in conflicts. What happens is that the legal validity is implicitly functioning in the regularity of the rules of identification of the bureaucratic regulations. At the moment the problems arise, someone will be required to solve them. It is then that the legal validity that came nourishing the norms with the normality is revealed in all its force. Ergo, the validity is not linked or depends on the political structure. In other words, a norm is not valid thanks to the structure.
Legal validity is a judgment; a judgment that in the case of the vectura rules has to perform –to solve a problem, for example –the human being who authorizes an identification rule. This does not mean that the validity is only valid in the vectura rule. Validity is a judgment on the technique characterized by Law. Law is the science of generalization. Consequently, legal norms are valid in the system of a political structure when they are the result of that generalization; the economic norms when they imply the adequate election on multiple data that correspond to the reality that the economy faces.
The validity goes beyond the identification rules, because these are likely to involve the aforementioned judgment. Strictly speaking, validity is a judgment about the generalization of the norms of the political structure. In a judicial review case, the judge must proceed to execute a generalization test. To know if a norm X is valid, you have to execute a judgment on the generalized rule. It is a creative work. For example, if in our societies an individual affirms that a norm X prevents him from performing a job, the judge can say that it is invalid because the validity judgment evidences that a norm has been generalized –now transported and recognizable in the identification rules– that prescribes that everyone has the right to perform the work that best suits them, while it is legal[10]. A norm could also be controverted that a) grants a certain and particular interpretation of norms that are transported or that, b) establishes norms in the supposed context of the transportation. The judge would invalidate such a rule if, when displaying the validity judgment, he or she realizes that the norm in question does not correspond to the generalized and then overlapping normative complexes. In the other case, –norms established in an alleged transportation context, the judge would invalidate the rule that condemn the transported results. Such is the case of a reform or amendment rule that the government modifies or that suppresses fundamental rights.
The preceding examples are simple. What we wish to emphasize is the force of legal validity thus conceived. There is no need to raise a formal and material validity or linked to the political structure. Validity is more complex than the identification rules necessary to achieve the purposes of Law. However, if there is a rule or rules of identification of regulations from the transported normative. On the contrary, there is no ultimate validity rule. Validity is not looking for rules, it is building rules, understanding rules or adjusting rules based on the generalization of normative complexes.
We hope that these brief lines serve to give our judges a safe tool to carry out their work and protect us in that Babel complexity of human relations. Force by force has been conjured. The judges do not need instruments of force. If the Law continues to regulate human relationships, we can raise our voices to say that this has been the greatest creation; Raise the pen to write a thousand pages in his praise.
[1] Who intends to operate, as we said, in the field of performance of judges. However, it is plausible that our idea can serve as a basis for a theory of Law and not only for a vision of it in the judicial context.
[2] The idea that must be considered from this moment–and that we will reiterate–is that chemistry is not so long as it is applied and integrated into a company of, for example, paints or textiles. Chemistry continues to be so despite the fact that, at certain moments, there is no visible result. There is chemistry whether it is used for pens, oils or textiles. In the same way, there will be Law even if its results are embedded in structures of a fascist type or even though some of its results are not taken care of by any state or international organization.
[3] That it should not be confused with some concepts of revolutionary transit such as that of constituent power. In reality, constitutional norms are a legal response and not a political ideology of a historical stage in the context of modernity. In this sense, it is possible to say that the transportation rule replaces notions such as constituent power and serves with greater success to a generalized explanation of the rules of a legal system.
[4] CONKLIN, W. E, The Invisible Origins of Legal Positivism, A Re–Reading of a Tradition, Netherlands, Kluwer Academic Publishers, 2001, p.2.
[5] CONKLIN, W. E, The Invisible Origins of Legal Positivism, A Re–Reading of a Tradition, Netherlands, Kluwer Academic Publishers, 2001, p.2.
[6] At least this would be the basic dimension that triggers the typical note of generalizing normativities. Issues such as challenging rights to irrational animals or other living organisms or structures does not entail an expansion – a strict sense – of this. After all, it is the man who reasons and not the animals and other organisms that end up being benefited with the challenge of legal situations.
[7] For example. Dred Scott v. Sandford. 60 U.S, 393 (1856).
[8] Vid. Merriam-webster. https://www.merriam-webster.com/dictionary/complex
[9] Vid. https://worldofdictionary.com/dict/latin-english/meaning/vectura
[10] Lawfulness that is appreciable by the directions of identification rules.
[a] Researcher. Universidad Autónoma del Estado de Hidalgo.