IV Definitio

The results of the arguments developed here can be brought together in a definition:

The law is a system of norms that (1) lays claim to correct­ness, (2) consists of the totality of norms that belong to a constitution by and large socially efficacious and that are not themselves unjust in the extreme, as well as the totality of norms that arc issued in accordance with this consti­tution, norms that manifest a minimum social efficacy or prospect of social efficacy and (hat are not themselves unjust in the extreme, and, finally, (3) comprises the prin­ciples and other normative arguments on which the process or procedure of law application is and/or must be based in order to satisfy the claim to correctness.

This is a definition of the law from the participant’s perspec­tive^2-9 and thereby a juridical definition of the law. The defined concept of law includes the concept of validity.²'⁰ The three parts of the definition correspond to the arguments from correctness, from injustice, and from principles, respect­ively.

The first part of the definition contains as a defining elem­ent the claim to correctness.²'¹ A system of norms that neither explicitly nor implicitly lays claim to correctness is not a legal system.^{[230] [231] [232] [233] In this respect, the claim to correctness has a clas­sifying significance.233 This has few practical consequences, for actually existing legal systems regularly lay claim to cor­rectness. however feebly justified the claim may be. Practically speaking, what is more important is the qualifying signifi­cance234 of the claim to correctness. Accordingly, simply failing to satisfy the claim to correctness does not exact legal character or legal validity from legal systems or individual legal norms, but, rather, renders them legally defective.231'}

See above, this text, at 23-4.

Sec above, this text, at 34. ^2M See above, this text, at 26.

That is an expression of the fact that there is necessarily an ideal dimension to the law.

In the.setwii/ part of the definition, the relation of the three classic defining elements to one another is specified—authori­tative issuance, social efficacy, and correctness of content. The relation is specified on two levels, that of the constitution and that of norms issued in accordance with the constitution. Expressed thereby is the fact that the definition has a limited range. It applies only to developed legal systems manifesting a hierarchical structure. A simplified variant of the definition would have to be worked out for legal systems that are not developed, but this is not pursued here.

A condition for the validity of a constitution is (hat the constitution be by and large socially efficacious. This formula refers to the social validity of the legal system as a whole, for a constitution is by and large socially efficacious only if the legal system as a whole that is established in accordance with the constitution is by and large socially efficacious.^[237] The concept of a social efficacy that exists ‘by and large’ also includes characteristics named in many definitions of the law—coercion and dominance over competing systems of norms. The characteristic of coercion is included in that the social efficacy of a norm consists in either compliance with the norm or, in the event of non-compliance, the imposition of a sanction, which includes the exercise of physical coercion, a task reserved to the stale in developed legal systems.^[238] ' The characteristic of dominance over competing systems of nonns is included in that a system of norms that docs not prevail in a conflict with other systems of norms is not by and large socially efficacious.^[239]

What has been said thus far on the validity of the consti­tution—that is, on (he first level of the second part of the definition—is also true of positivistic legal concepts. This part of the definition is non-positivistic in that the criterion for (he by and large socially efficacious constitution is restricted by the negative definitional characteristic, injustice in the ex­treme.

At the second level of the second part of the definition, the focus is on individual norms issued in accordance with (he constitution. This second level is necessary, for, unlike legal systems, individual norms need not be by and large socially efficacious as a condition for their legal validity. That criter­ion is replaced in a hierarchically constructed legal system by the criterion of authoritative issuance in accordance with a constitution that is by and large socially efficacious.²⁴² There are two restrictions on this criterion. Authoritatively issued individual norms forfeit legal validity if they do not manifest a minimum social efficacy or prospect of social efficacy or if they are unjust in the extreme.²⁴³ The latter is again an ex­pression of the non-positivistic character of the concept of law presented here.

While the positivistic concept of law is restricted in the second part of the definition by the definitional characteristic, injustice in the extreme, the third part of the definition expands the sphere of what belongs to the law by including in the concept of law the process or procedure of law applica­tion.²'” Everything on which an official applying the law in the open area of the law bases and/or must base a decision in order to satisfy the claim to correctness belongs to the law.²⁴⁵

^2,,) Sec above, this text, at 40-62. ²⁴" Sec above, this text, at 62-8.

²⁴¹ See above, this text, at 92-3. ²⁴² See above, this text, al 91.

²⁴³ See above, this text, al 40-62, 91. ²⁴⁴ See above, this text, at 24-5.

²⁴⁵ See above, this text, at 68-81.

So it is that principles, even when they cannot be identified as legal principles according to the validity criteria of the consti­tution. as well as other normative arguments justifying the decision become components of the law. The clause ‘bases and/or must base’ gives expression to the interplay of the real and the ideal dimensions of applying the law. The law includes those arguments on which officials applying the law in fact base their decisions, even if these decisions do not measure up to the claim to correctness, and it also includes those argu­ments on which the decisions would have to be based in order to satisfy the claim to correctness. A critique of the practice of making legal decisions becomes thereby possible from the standpoint of (he law.