Normative Requirements of Law as a System

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EVERY LEGAL SYSTEM IS NORMATIVE BUT ALL NORMATIVE SYSTEMS ARE NOT LEGAL SYSTEMS

NORMATIVE REQUIREMENTS OF LAW AS A SYSTEM:

SYNOPSIS

1. INTRODUCTION

2. DISTINCTION BETWEEN NORMATIVE AND FACTUAL DISCOURSES

3. NORMATIVE REQUIREMENTS OF LAW

• MATERIAL REQUIREMENTS
• HEURISTIC REQUIREMENTS
• HERNEUTICAL REQUIREMENTS
• TELEOLOGICAL REQUIREMENTS

Norm is a proposition that guides or regulates conduct of given persons (whose purpose is to guide the actions) so as to create (a possibility of) mutually intelligible (understandable) behavior among participants.

DISTINCTION BETWEEN NORMATIVE AND FACTUAL DISCOURSES:

Normative references are RULES AND REGULATIONS. They are either descriptive since they describe for the benefit of the observers whom wish to learn and they are normative since they identify rules and regulations for those who wish to take part (actual players).

Games, Sports, Clubs and Institutions etc.,

Ex: Tennis has love, fifteen, thirty, forty and dues (advantage and game); two serves; in and out; a set of 13 games; best of 3 or 5 sets; tie break etc.,

Unlike many others opine, normative propositions are both descriptive and prescriptive in terms of the rule they speak about.

Although grammar of a legal proposition is important normative character of a proposition is not determined by grammar. It’s logical form and purpose for which it is proposed and the context in which it operates are the determining factors.

Although propositions may not have Deontic operators, they are normative in their character. Ex: Propositions of Criminal Law.

Hence, a proposition becomes a norm in relation to the actions of a person and in relation to his situation.

Norms must be understood with reference to and in a given context. (Contextual or Referral Theory).

Fact is a priori that means its existence is independent to activities of human beings.

When persons act in accordance with the established and recognized norms, possibility of a systematic behavior gets actualized and that is referred to as feat or deed. (Actualized possibility)

Propositions could be factual or normative.

Normative propositions are in relation to feats whereas factual propositions dealing with the inter-relationship among facts.

A Set of deductively correlated propositions (such as legal propositions) can be treated as normative only when they can describe human conduct in a way that it brings into picture various mutually related feats.

Since feats belong to the society normative propositions relate to social behavior of persons.

BASIC CONDITIONS OR REQUIREMENTS FOR A NORMATIVE SYSTEM TO BE ESTABLISHED:

1. MATERIAL REQUIRMENTS:

A. PHYSICAL: The norms must take into account

• CAPACITIES OF PERSONS TO WHOM THEY ARE TO APPLY (LEGAL AND PHYSICAL);

• RELEVANT ASPECTS OF APPROPRIATE FACTUAL SYSTEM AND

• AVERAGE OR NORMAL INTELLIGENCE OF PERSONS

Ex: CHESS AND ARMY

B. PSYCHOLOGICAL:

• NORMS MUST BE DISTINCT AND CLEAR SUCH THAT THEY ARE UNDERSTANDABLE AND INTELLIGIBLE.

• SHOULD BE MADE KNOWN TO PEOPLE WHO ARE TO MOULD THEIR CONDUCT. Ex: GAMES, LAWS RULES OF EDUCATION SYSTEM

2. HEURISTIC REQUIREMENTS: They deal with how the elements of a system are to be organized.

Unlike in a Factual System wherein the importance is to the interrelationship of facts and therefore the acquisition of knowledge in a normative system the importance is towards the enquiery of aims.

THEY ARE Principles which specify:

1. Aims of the system.
2. Order of priority of the aims.
3. Procedures to achieve the aims.
4. How to change system if aims are not being achieved.
5. Who becomes the members and who are to be excluded.
6. Who’re to be considered as members of the system.
7. Conditions under which one may continue or cease to be members of the system. 8. Relationship of a system and one who is no longer a member and what and what not to do with them.

Ex: CREATION OF A...
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