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from Part II - Normativity
Published online by Cambridge University Press: 03 September 2021
Legal normativity cannot – pace Kelsen – be examined without reference to sociality, that is, the social practices where law is realised and (re)produced. Conversely, exploring law’s sociality requires attention to normativity. An analysis of sociolegal practices must heed the contribution of legal normativity to the internal normativity of those practices: to the patterning of the social actions making up the practice and to defining its task and role structure. Neither can legal relationships, legal-institutional facts or concrete orders of behaviour ‒ all playing a vital role in law’s realisation ‒ be grasped without alluding to the legal norms that provide legal relationships with legal form; which accomplish the function of constitutive rules in creating legal-institutional facts; or which are specified into rights and duties of particular individuals in concrete orders of behaviour. Furthermore, second-order legal practices would not be possible without the constitutive and facilitating contribution of legal culture, operating primarily through the Vorverständnis of legal professionals. Law also provides the framework for legal discourse among legal professionals occupying diverse roles within diverse legal practices. Law, comprising even sub-surface, legal-cultural, layers, defines the participants of the discourse, as well as the relative weight of their interventions.
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