Are Laws Social Facts
One of the areas in which Durkheim did extensive research was religion. It examined the social facts of suicide rates in Protestant and Catholic communities. Catholic communities consider suicide to be one of the worst sins and, as such, have much lower suicide rates than Protestants. Durkheim believed that the difference in suicide rates showed the influence of social facts and culture on actions. In his book “The Rules of the Sociological Method,” Durkheim described social facts, and the book became one of the fundamental texts of sociology. Social facts are what make us react strongly to people who deviate from social attitudes. For example, people in other countries who do not have an established house and instead wander from one place to another and do odd jobs. Western societies tend to think that these people are strange and strange based on our social facts, whereas in their culture, what they do is quite normal. Searle JR (1995) The construction of social reality. Simon and Schuster, New York Vilajosana JM (2003) Hechos sociales y Derecho. In: Diciotti E, Velluzzi V (Eds.) Ordinamento giuridico, sovranità, diritti. Giappichelli, Turin, pp.
41-63 Celano himself admitted a non-malignant circularity in relation to his vision of common norms as social rules. See Celano (1995), pp. 15-77. Durkheim used many examples to demonstrate his theory of social facts, including: Tusset G (2007) The Social Reality of Law. In: Comanducci P, Guastini R (Eds.) Analisi e diritto. Giappichelli, Turin, S. 179-198 Austin was most directly influenced by Bentham, whose legal theory was motivated by eighteenth-century movements to codify and reform law. Since codification requires the replacement of reasonably independent judicial decisions in some cases with a systematic code of law, Bentham was drawn into the philosophy of law because he wanted to base his codification proposals on an understanding of the fundamental elements of law. But Bentham`s most important analytical study, Of Laws in General, although completed in the eighteenth century, was published only recently, so it had much less impact on the development of jurisprudence than Austin`s better-known works. Austin`s writings set the stage for contemporary jurisprudential controversy. What is a social fact in one culture can be hideously strange in another; By keeping in mind how society affects your beliefs, you can tone down your reactions to what is different.
Vilajosana JM (2010a) El derecho en acción. La dimensión social de las normas jurídicas. Marcial Pons, Madrid He defined sociology as the study of social facts, which he said were the actions of society. Social facts are the reason why people within a society seem to choose to do the same basic things; For example, where they live, what they eat and how they interact. The society to which they belong trains them to do these things and continue the social facts. The author shows that the existence of the right in a particular society requires the existence of a uniform practice of identifying the rules (a rule of recognition). It is also argued that the best way to understand this rule is to regard it as a constitutive convention that allows for the autonomous identification of the law of a particular community. Just as the existence of money requires the belief that it exists, the existence of a legal system ultimately depends on a set of beliefs shared by the individuals concerned.
After the development of this position, a series of recurring criticisms of conventional positions are reviewed, with the aim of rejecting them. These criticisms are as follows: if the rule of recognition is understood as a convention, it cannot take into account the normative nature of the convention, the existence of principles in legal systems, or differences of opinion between lawyers; Finally, the problem of the arbitrariness of the recognition rule and its alleged banality is addressed. As we have seen, Austin develops his legal theory as part of a more general theory of the norms that govern human behavior. Any law that is “properly called so,” whether made by God or by man, is “a rule established to guide an intelligent being by an intelligent being who has power over him.” Laws that are “properly called that” are orders that can be traced back to people who are able and willing to impose sanctions for non-compliance. Anyone with whom you share the following link will be able to read this content: the wording of these counterfactuals comes from Narváez (2004), p. 280. Marble A (2001b) Positive Law and Objective Values. Clarendon Press, Oxford In the sense expressed by Andrei Marmor, that I am on this point. See Marble (2001a), p. 200.
Ullmann-Margalit E (1977) Die Entstehung von Normen. Clarendon Press, Oxford Part of the Law and Philosophy Library Book Series (LAPS, Volume 126) Vilajosana JM (2010b) Eficacia normativa y existencia del derecho. Teoría & Derecho. Revista de pensamiento jurídico 8:103–118 Marmor A (2006) Legal positivism: always neutral descriptive and moral. Oxf J Leg Stud 26(4):683–704 Lewis D (1969) Convention. Eine philosophische Studie. Basil Blackwell, Oxford This is what, for example, MacCormicck and Weinberg (1986), pp. 132-133; Garzón (1993), pp.
317-335, do. One of the first to attempt this attempt was Postema (1982), pp. 165-203. Nino CS (1982) Introducción al análisis del derecho. Ariel, Barcelona Hart himself gave the cause by considering that the rule of recognition, although it is a secondary rule, imposes obligations. See, in this context, the controversy maintained by Ruiz Manero and Bulygin in the journal Doxa: Bulygin (1991), pp. 311-318; Ruiz Manero (1991), pp. 281-293.
(2019). Social Facts and Law: Why the Rule of Recognition is a Convention. In: Ramírez-Ludeña, L., Vilajosana, J. (Eds.) Legal Conventionalism. Law and Philosophy Library, Volume 126. Springer, Cham. doi.org/10.1007/978-3-030-03571-6_6 Lagerspetz E (1995) reflects the opposite. An essay on the conventionalist theory of institutions. Kluwer, Dordrecht Kelsen H (1960) Queen Rechtslehre, 2nd ed. Frans Deuticke, Vienna On the role of efficiency cf. Vilajosana (2010b), pp.
103-118. Anscombe (1957), p. 84 et seq. See, to the same effect, celano (1995), p. 54. You can also search for this author in PubMed Google Scholar MacCormicck N, Weinberg O (1986) An Institutional Theory of Law. New approaches to legal positivism. Reidel, Dordrecht Green L (1988) State authority. Oxford University Press, Oxford Some of his research in this area has been questioned in recent years, but his research on suicide has been groundbreaking, shedding light on how society influences our individual attitudes and actions.
Vilajosana JM (2008) At the gates of paradise. Response to Luís Prieto Sanchís. Jahrbuch der Rechtsphilosophy 25:507–536 Vilajosana JM (2006) Conventionalist legal positivism. In: Ramos Pascua JA, Rodilla MA (Eds.) Der untersuchte Rechtspositivismus. Studies in honor of José Delgado Pinto. Ediciones Universidad de Salamanca, Salamanca, pp. 521-538 Narváez M (2004) Wittgenstein y la teoría del derecho. A path to legal conventionalism. Marcial Pons, Department of Law of Madrid, Pompeu Fabra University, Barcelona, Spain Hart HLA (1994) In: Bulloch P, Raz J (eds) Postscript to the concept of law, 2nd edn.
Oxford University Press, Oxford. Ruiz Manero J (1991) Independent norms, conceptual criteria and verbal tricks; Response to Eugenio Bulygin. Doxa 9:281–293 Celano B (1995) Consuetudini, convenzioni. In: Comanducci P, Guastini R (Eds.) Analisi e diritto. Giappichelli, Turin, pp. 15-77. Spanish translation by Moreso J J, cited as: Customs, Conventions. In: Zwei Studien zum Thema Custom. Fontamara, Mexico 2000. Bulygin E (1991) Recognition rule: obligation rule or conceptual criterion? Response to Juan Ruiz Manero.
Doxa 9:311–318 Bayon JC (2002) The Minimum Content of Legal Positivism. In: Zapatero V (coord) Horizontes de la filosofía del derecho: homenaje a Luís García San Miguel, vol 2. S. 33–54 Marmor A (2001a) Legal conventionalism. In: Coleman J (ed) Hart`s postcript. Essays on the postscript on the concept of law. Oxford University Press, Oxford, pp. 193-217 On the concept of arbitrariness, see Marble (2006), p.