4 Matching Annotations
- Oct 2024
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academic-oup-com.libaccess.lib.mcmaster.ca academic-oup-com.libaccess.lib.mcmaster.ca
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exactly the opposite: it is by way of the unlawful act that the existence of the law proves itself, for this existence consists in the validity of the law, that is, in the ‘ought’ of the coercive act as the consequence of the unlawful act
understanding it as unlawful acts don't affirm the the system of law, but rather the system of law exists because there is such thing as unlawful acts
so they are dependent on one another/do not exist without each other
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Rather, what makes certain behaviour a delict is simply and solely that this behaviour is set in the reconstructed legal norm as the condition of a specific consequence, it is simply and solely that the positive legal system responds to this behaviour with a coercive act
suggests that punitive behaviour is only punitive because it occurs in a socially constructed reality of law
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It remains applicable whatever the content of the material facts so linked, and whatever the type of the acts to be understood as law.
this is how pure legal theory separates law as ought from the analogy to law as a norm (like morality as a norm)
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And in this sense, the conceptual characterization of the law as norm and as ‘ought’, offered by the positivist jurisprudence of the nineteenth century, does in fact retain a certain ideological element
this is how law still has an element of its ideological past, in that it law is understood as a norm (something we 'ought' to follow)
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