If by enforceability we mean that conformity to a legal norm must be
insured by other legal norms providing for the case of its violation, we
need only go on from the insured to the insuring norms for a while, to
come to norms for which conformity is not insured by any further legal
norms. If one refuses to recognize these norms as legal norms, then
neither can the norms which are insured by them rank as legal norms, and
so, going back along the series, one has at last no legal norms left.
Only if one would understand by the enforceability of the legal norm
that a will must have at its disposal a certain power in order that a
legal norm may be based on it, one might certainly say in this sense
that enforceability belongs to the essence of a legal norm. But this
quality of the legal norm would be only such a quality as would be
derivable from its quality of being a norm, and would therefore have no
claim to be added as a further quality.
Again, it has been named an essential quality of a legal norm that it
should be based on the will of a State. But even where we cannot speak
of a State at all, among nomads for instance, there are yet legal norms.
Besides, every State is itself a legal relation, established by legal
norms, which consequently cannot be based on its will. And lastly, the
norms of international law, which are intended to bind the will of
States, cannot be based on the will of a State.
Finally, it has been asserted that it was essential to a legal norm that
it should correspond to the moral law. If this were so, then among the
different legal norms which to-day are in force one directly after the
other in the same territory, or at the same time in different
territories under the same circumstances, only one could in each case be
regarded as a legal norm; for under the same circumstances there is only
one moral right. Nor could one speak then of unrighteous legal norms,
for if they were unrighteous they would not be legal norms. But in
reality, even when legal norms determine conduct quite differently under
the same circumstances, they are all nevertheless recognized as legal
norms; nor is it doubted that there are bad legal norms as well as good.
5. As a norm based on the fact that men have the will to see a certain
procedure generally observed within a circle which includes themselves,
the legal norm is distinguished from all other objects, even from those
that most resemble it.
Public-domain text, read in full here on John Shaqi.
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