2 - Social Practices

Summary

In accordance with its dichotomous ontological premises, mainstream positivism of the preceding century was not interested in conceptualising the realisation of law. It considered, though, compliance of social actors with law in general and individual norms in particular necessary for law’s efficacy and as such a precondition for legal validity. As a rule, its interest did not extend to exploring the process of realisation; that is, the transition from abstract norms to norm-conforming behaviour. Of course, exceptions exist. Rights, duties, and legal relationships are major steps in the transition. In the wake of Jeremy Bentham, John Austin and Wesley Newcomb Hohfeld, analytically minded positivists have continued elaborating these concepts. Yet analysis has focused on the logical relations between the concepts so that, typically, rights, duties, and legal relationships have been detached from their social context. In this respect, too, Kelsen held an extremist position. For him, ‘right’, ‘duty’ and ‘legal relationship’ connoted relationships between legal norms. In the realist camp, especially in Scandinavian Realism, the analytical approach has also enjoyed popularity. However, Scandinavian realists’ realism was largely confined to defining the basic concepts with reference to predictable reactions from the side of authorities, thus allegedly satisfying empiricist criteria whose fulfilment the scientific character of legal scholarship was seen to require.