Legal norms are an invention. This paper advances a proposal about what kind of invention they are. The proposal is that legal norms derive from rules which specify role functions in a legal system. Legal rules attach to agents in virtue of their status within the system in which the rules operate. The point of legal rules or a legal system is to solve to large scale coordination problems, specifically the problem of (...) organizing social and economic life among a group of people and their successors, though not every legal rule pertains to a coordination problem. The framework for thinking about legal norms that I describe is a framework for thinking about institutions and policies more generally. The idea is to show that legal norms are a species of institutional norm. There are two central ideas. The first is the idea of a role in an institution. The second is the idea of proxy agency. Proxy agency involves one agent or group acting under the authorization of another agent or group (perhaps subsuming it) in a way that makes the actions of the proxy count as actions (under a description) of the individual or group for which it is a proxy. We get the characteristic structure of a legal system by conceiving of an institutional group, itself conceived of as a set of interlocking roles realized in individuals, as having one or more roles for proxy agents who are authorized by the group to make policy for the group. The set of rules governing the basic constitution of the group and spelling out the powers of the policy proxies determine fundamental norms for the group with specific role responsibilities attaching to particular positions in institutional arrangements. The policies determine further norms whose force derives from the fundamental norms. We must then say some further things to distinguish institutions and policies which we wish to designate as legal. (shrink)

This paper describes the automated classification of legal norms in German statutes with regard to their semantic type. We propose a semantic type taxonomy for norms in the German civil law domain consisting of nine different types focusing on functional aspects, such as Duties, Prohibitions, Permissions, etc. We performed four iterations in classifying legal norms with a rule-based approach using a manually labeled dataset, i.e., tenancy law, of the German Civil Code ). During this experiment (...) the \ score continuously improved from 0.52 to 0.78. In contrast, a machine learning based approach for the classification was implemented. A performance of \ was reached. Traditionally, machine learning classifiers lack of transparency with regard to their decisions. We extended our approach using so-called local linear approximations, which is a novel technique to analyze and inspect a trained classifier’s behavior. We can show that there are significant similarities of manually crafted knowledge, i.e., rules and pattern definitions, and the trained decision structures of machine learning approaches. (shrink)

Legal positivists typically describe law as ‘thinly’ normative to distinguish it from the ‘thick’ normative force of moral norms have; which legal norms may lack. One popular account of thin normativity is social normativity. But a number of scholars have offered accounts of what it is to be a thin norm that are distinct from social normativity. This paper addresses these alternative accounts of what it is to be a thin norm. It also explores whether law (...) counts as necessarily ‘thinly normative’ on these accounts. I argue that some accounts of thin normativity are so generic (‘super-thin’) that they are unable to distinguish between (thin) norms and nonnormative facts and thus collapse into triviality. I also consider more metaphysically demanding accounts of thin normativity, such as the view that everything is a norm that is essentially represented by deontic modals. However, law might fail to meet the demands of these slightly thicker accounts. I thus propose a view of law as consisting in nonnormative facts (diagnostic categories) and suggest sketching accounts of thin normativity as contingent, rather than necessary, features of laws and legal systems. (shrink)

Traditionally legal theorists, whenever engaged in controversy, have agreed on one point: legal norms are par excellence rules which impose obligations. The author examines this assumption, which from another perspective (that of constitutional law, for instance) appears less obvious. In fact, constitutional rules are commoniy empowering norms, norms which do not create duties but powers. To this objection many theorists would reply that empowering rules are incomplete and that they are to be understood as parts (...) of duty‐creating rules. A different position from this traditional stance is that defended in Kelsen's later writings, according to which the fundamental type of norm is the empowering norm. The author discusses Kelsen's three theories on the “ideal form” or structure of the legal norm, with special attention to the third of these, the empowerment theory. (shrink)

Law is the main regulator of public relations, and the question of the proper use and understanding of legal language is essential for law enforcement. This topic is of interest to both lawyers and philosophers, who often join efforts to study it. This article attempts precisely to take such an interdisciplinary approach when examining legal rules as specific linguistic conventions. First of all, for the sake of a better and more thorough understanding of legal language, legal (...) norms are viewed both from the point of view of semantics and from the point of view of pragmatics. Therefore, for this purpose, a distinction is made between legal norms and legal provisions as their linguistic equivalent. Legal norms are then explored through Wittgenstein's Later Philosophy, which describes their semantic content. The pragmatic aspect of the question is explained through John Austin's theory, thus treating legal rules as a kind of specific speech act of a conventional nature. (shrink)

We analyse the relationship between applicability and effectiveness of legal norms from a philosophical perspective. In particular, we distinguish between two concepts of applicability. The external applicability of norms refers to institutional duties; a norm N is externally applicable if and only if a judge is legally obliged to apply N to some case c. Internal applicability refers instead to the sphere of validity of legal norms. A norm N is internally applicable to actions regulated (...) by its sphere of validity. We also explore the consequences of a thesis which maintains that applicability restricts the concept of effectiveness, so that only applicable norms can be considered effective. Our analysis illustrates that a proper reconstruction of the concept of applicability is of great importance not only for understanding the concept of effectiveness but also for providing insight into the nature of law. (shrink)

M. Clifford-Vaughan; VII—Social Change and Legal Norms, Proceedings of the Aristotelian Society, Volume 67, Issue 1, 1 June 1967, Pages 103–110, https://doi.org.

Legal norms serve as practical standards for individuals and officials. While this ‘normative aspect’ of law is widely acknowledged, its significance for theories of law remains contested. In this paper, I examine three views on the matter. First, that we should explain legal norms as reason-giving. Second, that we should explain legal discourse as being about reasons for action. Third, that we should explain law as capable of being reason-giving. I survey some challenges associated with (...) each of these views. What they have in common is an implicit assumption about the form that normative explanation must take: that it must be a linear, non-reductive explanation. There is an alternative model for normative explanation available, however. That model explains normative notions in terms of the practices and attitudes involved in recognizing, offering, and demanding them. I highlight the potentials, and limitations, of this practice-centered alternative. (shrink)

This book offers a 'genealogical' explanation of law's normativity. The term 'genealogical' conveys a commitment to a non-metaphysical type of enquiry. While it explains how law, as a normative phenomenon, comes about, it does not seek to ground law's normativity in anything but the context of social interaction giving rise to it. Legal normativity is brought about on a daily basis. Whether in revolutionary circumstances or in the quotidian need for judges, lawmakers or citizens to balance law's demands with (...) those of morality or prudence, our ability to bind ourselves through law ultimately depends on our capacity to articulate a better way of living together, and to commit ourselves to it. These efforts of assessment and articulation depend, in turn, on our conception of normative agency. Assert the need to trace the truth of ethical judgments to some independent moral 'facts' conditioning their objectivity, and you will get a different understanding of what it is we are doing when we dispute law's authority in the name of moral values. Tracing the truth of moral judgements back to our own social practices not only affects the nature of disagreement; it also dramatically increases our responsibility when, as lawmakers, judges, or citizens we 'take the law into our own hands' and confront it with our moral expectations. (shrink)

We analyse the relationship between applicability and effectiveness of legal norms from a philosophical perspective. In particular, we distinguish between two concepts of applicability. The external applicability of norms refers to institutional duties; a norm N is externally applicable if and only if a judge is legally obliged to apply N to some case c. Internal applicability refers instead to the sphere of validity of legal norms. A norm N is internally applicable to actions regulated (...) by its sphere of validity. We also explore the consequences of a thesis which maintains that applicability restricts the concept of effectiveness, so that only applicable norms can be considered effective. Our analysis illustrates that a proper reconstruction of the concept of applicability is of great importance not only for understanding the concept of effectiveness but also for providing insight into the nature of law. (shrink)

It is a basic intuition about the law that organs of adjudication ought to justify their decisions by recourse to the appropriate applicable norms. Nevertheless, a sound reconstruction of the applicability of legal norms has been largely ignored in contemporary legal theory. Different connections between applicable norms and cases are explored in this paper, and a distinction is suggested between internal and external applicability. A legal norm is internally applicable to the cases regulated by (...) its scope of validity , and is externally applicable when it has to be used in a certain case as a justification of an institutional decision . A usual claim holds that all and only valid norms which, by their terms, apply to the case at hand must be applied in determining the outcome of the case. However, we try to demonstrate that a valid legal norm that exists as a member in a legal system may be internally applicable to a case and yet not be externally applicable to it. It also may occur that judges sometimes have the legal duty to apply norms that are not part of their own legal system. Consequently, the relations between internal and external applicability and between external applicability and validity deserve a careful examination. In these pages we hold that, though validity plus internal applicability is neither a necessary nor a sufficient condition of the duty to apply a legal norm, there is a complex conceptual link between external applicability and the systematic reconstruction of the law. (shrink)

In the academic setting as in any organization legal norms prevail and are assumed to be congruent with ethical norms. Nevertheless, there are cases when the ratio of ethical and legal norms is inadequate and disproportional, especially those dealing with socially responsible decisions in academia. For this reason, the aim here is to analyse incongruences of ethical and legal norms related to the revocation of doctoral degrees in Lithuania, illustrated with examples of deviant (...) behaviour by academic degree holders in terms of decisions of the courts and the ombudsman for academic ethics. Lithuania, being a Member State of the European Union, is currently facing the challenge of implementing newly-adopted laws related to the revocation of doctoral degrees. Accordingly, data were collected from available online official sources to gain more comprehensive evidence, and then analysed using the inductive approach of qualitative content analysis. Research findings show that there is still a thin line between ethical and legal norms, and this line fluctuates depending on nuanced considerations. This is to say that it is still problematical to dress ethical principles in legal clothing. (shrink)

Law is a main source of justice in a democratic society, and as such it must send clear and unequivocal messages to its addressees. Therefore, the question of the meaning in the legal vocabulary does not lose its relevance and universality. The present study examines the question of the linguistic significance of legal norms in legal vocabulary, applying an interdisciplinary approach. Joining the thesis that the legislation can be considered as an expression of the legally significant (...) will of the rule-making authority, the legal provisions will be presented as an intentional act. In search of the most appropriate explanatory method, two kinds of theories will be applied in parallel: Paul Grice's theory of linguistic meaning, on the one hand, and some theories with both textualist and intentionalist orientation, on the other. Subsequently, the communicative maxims proposed by Grice will be related to selected normative requirements related to the language of the normative acts. (shrink)

The text examines the status of the truth in the legal norms, trying to answer the questions of whether they can be subject to a truth assessment and, if such an assessment is possible, how a truth value can be attributed to legal norms. To achieve this goal, first of all, the text discusses some basic linguistic conceptions concerning the nature and truth of legal norms and subsequently, a a complex approach is being proposed (...) for attributing truth-value to legal norms. On On the one hand, the latter’s being studied by the methods of deontic logic and theory of possible worlds, and on the other hand, their relation to truth is being explained by semantic anti-realism. (shrink)

Resumen En este artículo defiendo la postura según la cual el republicanismo -en comparación con otras nociones o motivos centrales- no se ha interpretado como uno de los rasgos que caracteriza a la filosofía jurídica y política de Kant como un todo. Una posible razón es que el republicanismo kantiano no ha ocupado un lugar destacado dentro de las narrativas republicanas, ya sea históricas o sistemáticas, que son más dominantes en las discusiones contemporáneas. A mi parecer, esto es así porque (...) hay características innovadoras en la empresa republicana kantiana que se encuentran en tensión con otros proyectos republicanos de otra índole. Aquí discuto algunos de los rasgos distintivos del proyecto de Kant en lo que atañe a concepciones suyas sobre el estado de derecho, la ciudadanía, la autoridad política, la libertad de expresión y el derecho internacional, con el fin de señalar que estas son parte integral de una teoría política y legal que todavía es atractiva y sugerente.In this paper, I defend the stance that republicanism -in comparison to other central notions- has not been interpreted as one of the main traits that characterize Kant’s legal and political philosophy. A plausible reason for this is that Kantian republicanism has not occupied a prominent place in the republican narratives, historiographical or systematic, that are dominant in contemporary discussions. To my mind, the reason for this is that some innovative characteristics in the Kantian republican enterprise are at odds with other republican philosophical projects. Here I discuss some distinctive traits of Kant’s project regarding his conceptions of the rule of law, citizenship, political authority, free speech, and international law with the aim of showing that they are an integral part of a political and legal theory that is still attractive and compelling. (shrink)

This paper attempts to determine what laws’ most fundamental normative property is for Plato. After examining the Hippias Major and the pseudo-Platonic Minos, I argue that in the Laws this property is correctness (orthotês) which is understood as maximizing the citizens’ happiness. I argue that laws failing to do so are defective as laws because they’re not partially grounded in the relevant ethical facts and that Plato is thus a natural law theorist. The last section provides further justification for the (...) claim that laws failing the correctness criterion are defective as laws by appealing to Plato’s understanding of practical rationality. (shrink)

This article focuses on issues relating to legal normativity, emphasizing the way these matters have been elaborated in the works of Kelsen and Hart and later commentators on their theories. First, in Section 2, the author offers a view regarding the nature of law and legal normativity focusing on Kelsen's work (at least one reasonable reading of it). The argument is that the Basic Norm is presupposed when a citizen chooses to read the actions of legal officials (...) in a normative way. In this Kelsenian approach, all normative systems are structurally and logically similar, but each normative system is independent of every other system – thus, law is, in this sense, conceptually separate from morality. Second, in Section 3, the author turns to Hart's theory, analyzing the extent to which his approach views legal normativity as sui generis. This approach raises questions regarding what has become a consensus view in contemporary jurisprudence: that law makes moral claims. The author shows how a more deflationary (and less morally-flavored) understanding of the nature of law is tenable, and may, in fact, work better than current conventional (morality-focused) understandings. (shrink)

This paper and its companion (‘‘The Planning Theory of Law I: The Nature of Legal Institutions’’) provide a general introduction to Scott Shapiro’s Planning Theory of Law as developed in his recent book Legality. The Planning Theory encompasses both an account of the nature of legal institutions and an account of the nature of legal norms. The first paper concerns the account of legal institutions. This paper concerns the account of legal norms.

This book offers empirical and theoretical research in the field of social and legal norms and provides inspiration for future debate and research in terms of internationalization and cross-national comparative studies. It presents a consistent picture of empirical research in different social and organizational areas and deepens the theoretical understanding regarding the interplay between social and legal norms. The contributors argue that normativity is a result of combinations between law in books, law in action, social (...) class='Hi'>norms and social practice. The book uses a variety of different international examples, ranging from Sweden, Uzbekistan, Colombia and Mexico. (shrink)

In at least two of his writings, F. S. C. Northrop some time ago suggested an interpretation of the spiritual foundations of Oriental and Occidental civilization which he used as a basis for understanding, among other things, their differing approaches to moral and legal order. Rooted primarily in Biblical and Greek sources, the West, he said, has concentrated on and developed the theoretic component of experience. This component is one wherein the nature of things is taken to be, not (...) the directly observable material of sense and immediate experience, but rather that which is designated by theory through the rational construction of hypotheses and theories. Nature, so to speak, is not the nature found in the directly experienced, but that postulated or inferred by reason and science as lying “behind” or “above” direct experience and accounting causally for it. (shrink)

Many contemporary philosophers of law believe that one of the central problems of the field is that of explaining the normativity of law. But it is not clear that this is a problem at all, or at least that it is different from the problems that have been exhaustively addressed and analyzed for generations. Once we deconstruct the alleged problem of normativity into its component parts, we can appreciate that legal normativity is either conditional, or is instead but a (...) small variation on age-old questions about the moral obligation, if any, to obey the law simply because of its status as law. There are interesting modern versions of these positions, but in the final analysis David Enoch is correct in labeling the problem of legal normativity as a “pseudo-problem.”. (shrink)

This article delves into the intersection of literature and legal normativity through the lens of Ismail Kadare’s novel Broken April. It explores how literary theory enhances philosophical analysis of law by examining the novel’s portrayal of the Kanun, a set of customary laws in Albania, highlighting the complexity of legal normativity and the impact of law on individual subjectivity and social order. The core argument posits that Broken April serves not only as a reimagined narrative of Albanian customary (...) law, but also as a device to question and reflect on the broader implications of law’s normative force, and its reliance on a plethora of aesthetically effective symbols, in constituting both human behavior and the social imaginary. Through the literariness of Broken April, this article explains how law infiltrates and molds the social and psychological dimensions of life, ultimately shaping legal experience. It argues that literature offers a unique vantage point to reassess our understanding of law’s role in society, challenging conventional and nonconventional legal theories that overlook the cultural and emotional dimensions of law. (shrink)

In this response to eight commentaries on my article “Kelsen, Hart, and legal normativity” I clarify some points in my original analysis and agree with some comments regarding work that still needs to be done. In particular, I attempt to distinguish my position from both Berkeleyan idealism and mere subjective perception. I agree with the commentators who urge that more must be done to analyze the nature of normativity in general, and legal normativity in particular.

Anglo-American authors have paid little attention to a subtle distinction that has important jurisprudential implications. It is the distinction between sources of law and the legal norms which can be derived from sources by means of interpretation. The distinction might also be rendered as a threefold one, separating sources of law from legal norms and both of these from that which mediates their relation, namely, methods of legal interpretation. This paper intends to state the “source-norm” (...) distinction clearly and to give examples of jurisprudential insights that are missed, and mistakes that may be made if the distinction is not given its due. (shrink)

Ronald Dworkin has long criticized legal positivists for their efforts to distinguish between legal and non-legal standards of conduct that are incumbent on people. Recently, Dworkin has broached this criticism in his hostile account of the debates between Incorporationist Legal Positivists and Exclusive Legal Positivists. Specifically, he has maintained that Incorporationists cannot avoid the unpalatable conclusion that the axioms and theorems of arithmetic are legal norms. This article shows why such a conclusion is (...) indeed avoidable and why Dworkin's criticism is therefore wide of the mark. (shrink)

The phenomenon of the New Genetics raises complex social problems, particularly those of privacy. This book offers ethical and legal perspectives on the questions of a right to know and not to know genetic information from the standpoint of individuals, their relatives, employers, insurers and the state. Graeme Laurie provides a unique definition of privacy, including a concept of property rights in the person, and argues for stronger legal protection of privacy in the shadow of developments in human (...) genetics. He challenges the role and the limits of established principles in medical law and ethics, including respect for patient autonomy and confidentiality. This book will interest lawyers, philosophers and doctors concerned both with genetic information and issues of privacy; it will also interest genetic counsellors, researchers, and policy makers worldwide for its practical stance on dilemmas in modern genetic medicine. (shrink)

The analytical tension between legal norms, moral values, and national interests seems no uncharted territory in political science, but has found very little interest in legal academia. For lawyers, moral values and national interests are largely “unknowns,” dealt with by other disciplines. Looking a bit deeper, the picture becomes more nuanced, however. As part of a roundtable on “Balancing Legal Norms, Moral Values, and National Interests,” this essay argues that norms, values, and interests are (...) not different universes of legal normativity, morality, and specific interests, but are interrelated concepts. Values clearly influence norms and often underpin them, while seemingly concrete norms (rules) are themselves often fragile constructs trying to balance competing interests. Value systems are quite diverse within societies, and this is even truer for interests; each society is a dynamic system of social interaction where conflicting interests are constantly playing out. In a way, underlying conflicts of values and interests are constantly being renegotiated in the legal system, with the norms enshrined in the text of statutes and treaties serving to constitute transitory reference points. (shrink)

Transparency is now a fundamental principle for data processing under the General Data Protection Regulation. We explore what this requirement entails for artificial intelligence and automated decision-making systems. We address the topic of transparency in artificial intelligence by integrating legal, social, and ethical aspects. We first investigate the ratio legis of the transparency requirement in the General Data Protection Regulation and its ethical underpinnings, showing its focus on the provision of information and explanation. We then discuss the pitfalls with (...) respect to this requirement by focusing on the significance of contextual and performative factors in the implementation of transparency. We show that human–computer interaction and human-robot interaction literature do not provide clear results with respect to the benefits of transparency for users of artificial intelligence technologies due to the impact of a wide range of contextual factors, including performative aspects. We conclude by integrating the information- and explanation-based approach to transparency with the critical contextual approach, proposing that transparency as required by the General Data Protection Regulation in itself may be insufficient to achieve the positive goals associated with transparency. Instead, we propose to understand transparency relationally, where information provision is conceptualized as communication between technology providers and users, and where assessments of trustworthiness based on contextual factors mediate the value of transparency communications. This relational concept of transparency points to future research directions for the study of transparency in artificial intelligence systems and should be taken into account in policymaking. (shrink)

According to Ronald Dworkin's mature views on jurisprudence, legal normativity depends on judges’ views about political morality. Plato's own mature views on this subject seem to take the contrary position as he claims that the law is expected to be authoritative in order to preserve a given state of affairs. Therefore, in Plato's view judges are not expected to interpret the law ubiquitously according to their own standards of political morality. In what follows, the discussion starts off by offering (...) a brief account of Dworkin's interpretivism and some of its shortcomings. We shall then move on to Plato's account of legal normativity, especially his views on the authority of law, law as preservation, and finally the politics of law in the light of the debate between conservatism and progressivism. (shrink)

The aim of the paper is to examine the nature of moral and legal norms in a broader context: first, taking into account logical and methodological assumptions, second, in the perspective of psychology of emotions and legal policy. The basic subject of the research carried out by Leon Petrażycki was represented by law. Originally, it had a psychological character, not an objective, eternal, and unchanging one. To fully understand the genesis and nature of morality and law, Petrażycki (...) addressed the study of mental phenomena, especially emotional experiences. First, however, he developed appropriate rules of logic and scientific methodology. Then he developed a new classification of mental phenomena, among which the fundamental role is played by bilateral emotions. At some stage, emotions begin to cooperate with cognitive processes, first of all with imaginations. Imaginations of acts, such as theft, betrayal, murder, can cause repulsive emotions, and type imaginations, such as truthfulness, charity, justice can evoke apulsive emotions. On the basis of such associations, judgments are created over time, the content of which becomes a basis for fundamental rules of conduct, that is, for norms. There are two fundamentally different types of norms: moral norms and legal norms. The norms of the first type are imperative and represent the nature of validity, while the norms of the second type are imperative-attributive and they also always entitle someone to something, i.e. they give someone a right. This division determines a fundamental difference between morality and law. (shrink)

The penetration process of structures traditionally assigned to civil law into administrative law, especially administrative law aiming environmental protection, has been more noticeable through recent years. This process resulted in deepening the absence of a clear separation of private law norms from public law norms. It led to the existence of so-called quasi civil solutions, which can be found for example in the Act on prevention from damages in environment and its repair. Their specificity consists in the fact (...) that they cannot be regarded as civil law structures due to the differences between them and the civil law structures. This legal status sets new challenges for legal theorists as well as practition- ers. They concentrate on interpretation of administrative law provisions which were penetrated by civil law structures, taking into account differences between interpretation of administrative and civil law provisions. We should not reject specific character of the civil law provisions’ interpretation and interpret these provisions only by taking into account specificity of administrative law inter- pretation. Civil law institutions are characterized by a larger field for action, which is left for parties or performers, in comparison to the institutions of ad- ministrative law. This specificity of civil law structures should be considered as its advantage that should not be removed in the activities of public authorities. (shrink)

Kelsen advanced a sophisticated naturalist conception of intention and adumbrated a methodological strategy that would enable the transformation of the sophisticated naturalist conception of ‘intention’ into a cognizable object of legal science while simultaneously providing an explanation of the legal ‘ought’. The methodological strategy is the ‘inversion thesis’ which establishes that legal norms enable us to objectively identify and determine the ‘will’ or the intention of legal authority. Contrary to nineteenth century psychologism, Kelsen argues that (...) it is not the case that the will or the intention of the sovereign determines what the norm is, rather it is the legal ought that ‘objectifies’ the will. However, it is argued that in spite of the fact that Kelsen advanced a sophisticated account of intentional action, he fails to understand the complexities of the notion of the ‘will’, intentional action and practical reason. What does he miss in his understanding of the notion of the practical? I will advance the view that the notion of the practical or deliberative involves, both in Kant and Aristotle, the transparency condition which establishes that the agent or deliberator intentionally acts for reasons that are self-evident or transparent to him or her. It is a recalcitrant feature of the deliberative standpoint that cannot be theorised. For Aristotle, Aquinas and Anscombe the deliberative standpoint can be known through the end or goal of the intentional action as this provides the form of the action. The end is presented as a good-making characteristic. As problematic as that might be, this means that the end needs to be presented as a good-making characteristic and therefore it involves evaluation. For Kelsen, the soundness of this conception is an insurmountable obstacle to theorise the ‘ought’ and therefore the ‘will’. Yet, surprisingly and contrary to Kelsen’s own notions, I will show that Kelsen’s ‘inversion thesis’ is parasitic on Aristotle–Anscombe’s ‘ought’. (shrink)

In this paper, we discuss the problem of the relationship between legal concepts and legal norms. We argue that one of the widespread theories of legal concepts, which we call ‘the embedding theory’, is false. The theory is based on the assumption that legal norms are central for any legal system and that each legal norm establishes an inferential link between a certain class of facts and a certain class of legal (...) consequences. Alf Ross’s embedding theory was presented in his famous paper “Tu–Tu”. According to Ross, the sole function of legal concepts is to simplify normative information. Hence, the use of legal concepts may be a matter of convenience, rather than necessity. We criticize this approach mainly by pointing to the existence of so-called second order substantive concepts, which are not reducible to any determined set of conditional sentences (inferential links). In short, second order substantive concepts play the role of general standards, and general standards are used to provide flexibility for a particular legal system. In addition, general standards are ‘value loaded’, since they serve as a frame of reference for judges applying law to particular cases. To understand such general standards as a predefined set of conditionals means to overlook their ‘open’ content, and thus their function. In our opinion, the acceptance of the embedding theory means to misinterpret the function of general standards. We also argue that Giovani Sartor’s idea of defective legal concepts doesn’t help to clarify or defend the embedding theory. (shrink)