A norm is based on the fact that men will to have a certain procedure
for themselves and others when the will on which the norm is based has
reference not only to others who do not will, but also, at the same
time, to the willers themselves also; when, therefore, these not only
will that others be subject to the norm but also will to be subject to
it themselves.
Every legal norm, and of all norms only the legal norm, has the
characteristic that the will on which it is based reaches beyond those
whose will it is, and yet embraces them too. The rule, "Whoever takes
from another a movable thing that is not his own, with the intent to
appropriate it illegally, is punished with imprisonment for theft," is
not only based on the will of men, but each of these men is also
conscious that, while on the one hand the rule applies to other men, on
the other hand it applies to himself.
Here it might be alleged that, after all, the mere fact of men's will to
have a certain procedure for themselves and others does not always
establish law; for example, the efforts of the Bonapartists do not
establish the empire in France. But it is not when this bare will exists
that law is established, but only when a norm is based on this will;
that is, when it has in its service so great a power that it is
competent to affect the behavior of the men to whom it relates. As soon
as Bonapartism spreads so widely and in such circles that this takes
place, the republic will fall and the empire will indeed become law in
France.
One might further appeal to the fact that in unlimited monarchies (in
Russia, for instance) the law is based solely on the will of one man,
who is not himself subject to it. But Russian law is not based on the
czar's will at all; the czar is a weak individual man, and his will in
itself is totally unqualified to affect many millions of Russians in
their procedure. Russian law is based rather on the will of all those
Russians--peasants, soldiers, officials--who, for the most various
reasons--patriotism, self-interest, superstition--will that what the
czar wills shall be law in Russia. Their will is qualified to affect the
procedure of the Russians; and, if they should ever grow so few that it
would no longer have this qualification, then the czar's will would no
longer be law in Russia, as the history of revolutions proves.
4. It has been asserted that legal norms have still other qualities.
It has been said, first, that it belongs to the essence of a legal norm
to be enforceable, or even to be enforceable in a particular way, by
judicial procedure, governmental force.
If by this we are to understand that conformity can always be enforced,
we are met at once by the great number of cases in which this cannot be
done. When a debtor is insolvent, or a murder has been committed,
conformity to the violated legal norms cannot now be enforced after the
fact, but their validity is not impaired by this.
Public-domain text, read in full here on John Shaqi.
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